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History of Copyright

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Text, Textuality and Digital Media
Professor Arjun Ghosh
Department of Humanities and Social Sciences
Indian Institute of Technology Delhi
Lecture 27
Copyright Part-1
So, I am going to take you through further into the linkages between copyright and technology, historically some of the portions of today's lecture is going to be referring back to some of the things that we have looked at in the past. And in order to put the lecture within a certain context and help, assist our understanding. (Refer Slide Time: 0:59)

But specifically as we have said that the need for this particular course is to understand the specific situations that we face in today's day and age with the coming of digital technologies, the digital media, and the implications and of inheriting a certain copyright regime from the era of mechanical reproduction from previous generations.
Because a certain large important change in technology is taking place and the argument really is that if copyright comes into being as a result of the coming of print and therefore, mechanical reproduction of art, does the ebbing away of mechanical reproduction of art or the coming of a new platform of the digital reproduction of art can it sustain copyright, does copyright work there? That is the question, Stallman and Lessig have argued that copyright does not fit the kind of usage patterns or the potentials of digital technology, but we need to examine at closer at hand.
(Refer Slide Time: 2:08)

So, if we try to look at it, the copyright is justified on the basis of a couple of arguments and this is something that we need to keep in mind. With copyright, the votaries of copyright they argue that copyright is brought into being in order to encourage the production of knowledge and also in order to pay for the costs of creation of a particular work of art. And so these are the two important arguments on the basis of which the edifice of copyright is really based.
(Refer Slide Time: 2:58)



But as far as creation of creativity, creative work and production of knowledge, certainly, our generation, the contemporary world is nothing new. We have seen various instances of creation of works of art through hundreds and thousands of years. And most of these works, which we have discussed in the course of these particular lectures, series of lectures have been created without copyright as a specific means of control.
There have been control through other mechanisms as I have argued, that if we look upon the way in which knowledge is controlled, then some of the previous mechanisms of creation of knowledge and ideas seek to restrict the processes of learning to specific communities, specific groups of people or specific locations within ecclesiastical domains or within royal courts, and thereby restricting knowledge.
Copyright is another mechanism of restricting knowledge to those who have the power to pay. So, it is just the restricting mechanism undergoes a change, but the specific mechanism of copyright, the argument that you need to pay for a work of art probably does not hold true, because there are other mechanisms of paying the artist and copyright is probably not the only mechanism that is available to or known to the human world. (Refer Slide Time: 4:31)


And, of course, with the coming of print and because copyright actually emerges within
England, it is important that this is the first instance of printing in England. William Caxton later in the 15th century, brings the printing machine to England and slowly the arguments for the emergence of copyright start developing within this world. (Refer Slide Time: 4:59)


So now, if we go back to oral traditions, we see that, for example, Shakespeare creates his plays very important to be known that there are these various sources that Shakespeare uses from previously existing histories, and in order to create his plays and we do not see Shakespeare acknowledging them or being bothered about or being sued for having taken ideas and not attributing them to previous writers, previous creators. These instances are only instances where scholars have been able to trace sources.
Of course, there could be there are certainly many sources within the plays by Shakespeare, which may not be attributable to any written or any physical copies of specific texts. So we would not even know. Certainly Shakespeare does not help us by providing footnotes or you know attributions or acknowledgments. So, and this is true also of other forms of texts which are there.
(Refer Slide Time: 6:26)

Within India, we have the legends of the Ramayan for example, the epic form, now this form certainly has various versions, which are reworked, which are localized in different languages and if one looks at the stories associated with the Ramayan there are tremendous variations of the roles of various characters. Some of the variations are much more stark than the others.
And certainly creativity has not suffered a bit by this kind of modification with or without attribution and mostly without attribution. And it has certainly enriched our traditional, the subcontinental tradition of storytelling in myriad ways and this Ramayan is just one example, there are so many other legends which are spread across the length and breadth of the subcontinent, irrespective of the various languages that are spoken.
And one can find great commonalities between the various narratives, but they are different, they are localized, they speak to a certain specific kind of community or audience, and one does not think of that as a copyright violation of any kind. (Refer Slide Time: 8:00)

But with the advent of printing in Europe which begins, which gives went to gives rise to the era of a mechanical reproduction of art, what we see is that there is a certain distance that is created, it is no longer enough for, for the artist to speak directly to the audience. It is not possible because there is a certain printing press, a certain capital input which is required anymore and that brings in the role of the printer publisher and the distributor, the bookseller who has to mediate between the artist and the audience.
And we saw that kind of mechanism with the coming of university secular education, with the rise of the demand for books, where the bookseller becomes a very important mediator. So, it is not merely with the invention of the printing press as we have seen in our other lectures that very often technology is a child of history and historical context actually makes certain technologies emerge or makes certain technologies work.
So, certainly with the need for distributed learning and a creative mechanism which is centralized, which is deeply located in a specific place, a mediation is necessary, the artists can no longer reach out to the very large audience or very distributed audience that may be interested in a particular writer’s work.
Earlier, scholars would travel and only when scholars traveled, would their ideas travel directly, otherwise they would only travel through other people's views, other people's narration or retellings of their stories or ideas. And as we understand that each of the retellings would bring about a certain change, would bring about a certain mutation to the artist’s ideas.
So, you had a previous form and primarily in the oral form, where it was the scholar who would speak to the audience, the speaker would speak to the listeners directly. It was a one on one relationship. However, when the quest for learning grows this possibility of writing, the writing actually ensures that the work, there is a separation between the artist and the work.
And even though there is a separation between the artist and the work, the number of manuscripts are few and far between and therefore the linkage, the aura of the artists remains with that particular manuscript to a far greater extent. However, with the increase in learning, with the exponential growth in learning that happens in the early modern era, through the rise of the universities, the desire of many more people to read, access specific manuscripts and works increased and which requires for a greater speed of reproduction, leading ultimately to the creation of the printing machine.
In such a situation, it becomes impossible at this point of time for the artist’s aura to be carried on in the ultimate piece of work. So, as Benjamin argues, in the mechanized act of reproduction, the artist’s aura reduces, the connect between the artist and the audience undergoes a severe restriction with the coming off of mechanical reproduction.
But as we would argue that with the digital reproduction, that can possibly be reduced, because the artists can once again get in touch with their own audiences individually, and directly that possibility that does exist, that possibility has once again being returned through the history of technology. But more about that later, first let us go through the coming of copyright before we talk about where we are headed in the digital era. (Refer Slide Time: 12:56)


So the first kind of identifiable copyright Act legislation is that of the statute of Queen Anne in England in 1709 but before this particular act actually comes into being there is a series of various movement, this copyright legislation does not come about, is not realized in a single year, it was not that someone decided to just put the copyright into place. It was a capping of series of innovations and to be followed by a series of other legal legislative innovations to come in the previous century.
But this is a very important identifiable form with the first national copyright law. That is a copyright law that is passed by us, a nation state. What appears in the 18th century as a nation state? We have looked at the emergence of the nation state through Benedict Anderson.
Anderson’s discussion of nationalism and so, this is the first time that either a monarchy or a nation state passes a law which applies to either a kingdom or an entire national boundary. But there were demands for the copyright or the need for copyright was being felt ever since the emergence of print.
(Refer Slide Time: 14:44)

Now, in the 16th century in Western Europe and large part of the discussion that we are going to undertake is going to be based on Western Europe because this was in Western European phenomena. We will also look at the impact of, when we have looked at the impact of copyright.
I mean printing within India, the Indian subcontinent, we do understand that certain technological developments that happened here in Europe are brought in into these nonEuropean countries, the erstwhile colonies verbatim almost without an organic growth from within, they do create different kinds of reactions, but reactions which are different to Europe.
But the concept and the fundamental concepts do not organically grow from within the non-European location. So therefore, in order to understand the specific concepts that are underlying, underlying the idea of copyright we need to focus on the history of Western Europe.
So, what happens in Western Europe in the 16th century is that with the growth of learning the demand for books increased. And therefore, since there is a great degree of interest in the search for saleable books, printers start looking for more and more books to sale, more and more books to print. So they look for different kind of manuscripts.
(Refer Slide Time: 16:49)

And this increased, the unceasing demand for books give rise to a new industry. This bookmaking, book printing industry, which was earlier merely the copyist’s form of circuit of copyist hand produced manuscripts. But now it is what would be now known as the print industry.
(Refer Slide Time: 17:18)

But in the 16th century, there were very few printing presses in England and most of them would be located in London. So, as we have discussed that a printing press would be very, very expensive and so to put it in place one needed a large sort of money and certainly be able to be afforded only by the elite, someone who can gather up enough money and enough capital to be able to not only pay for the printing press, but also the ink, the paper and the labor.
And we have also seen through the work of Danton, how printers and publishers would try to reduce their cost by actually laying off the labor at times when there is little work to be done. And they also try to reduce their costs by pinpointing or by being able to predict the kind of demand that could be there for a particular book. So, they try to be a whole lot choosier in order to ensure that specific books are only printed. If there is a great indication that there would be enough demand to actually clear out the stocks. (Refer Slide Time: 18:44)

And printers also did not want competition. They wanted a kind of surety in the kind of profit that they could make and they were very secretive about the processes of printing because they did not want other printers to be able to emulate their specific technologies, remember these were still the early days of printing and there was a great deal of innovation that was happening to make printing cheaper, more attractive, more readable, and also easier to transport.
And also how to work with images, that was also something, a great degree of innovation was going into it. And each of the printers would try to maintain a certain kind of trade secrets, would not like to be pass on knowledge, mind you, I would like to remind you that there is a distinction between copyright and other forms of intellectual property.
Copyright refers specifically to artistic and literary production to the content. However, other forms of intellectual property like designs of machines or formula for creation of medicine or other kinds of food, agricultural production, these come into are governed by other branches of intellectual property like patents or trademarks.
So, copyright is only a certain segment, a certain fraction of the entire intellectual property regime. So, what the printers by being secretive about printing processes are trying to do are actually trying to protect their designs, designs of their printing and part of the secrecy would also be about specific fonts that would be used with a specific movable type faces that they would be using, the specific stereotypical images that they would be using. So, those designs that they would be using. So, these kind of secrecy was maintained as printers wanted to maintain a certain niche and did not want great degree of competition because competition meant more uncertainty for them. (Refer Slide Time: 21:34)

And once a book was printed, there was no way to restrict it once a book was printed, it could be reprinted several times by other printers and this became a serious danger to printing and if printed reprinted by another printer, it could limit the earnings of the first printer because remember, the person who prints the book the first time is taking a risk, you cannot always conclusively predict the market, even today, you know market surveys are not able to predict demand for specific products conclusively, they are not able to get the correct answer each time, this is a very fine art and there is no certainty in it.
So however, the person who is pirating the book or notion the idea of taking on somebody else's printed book and recreating it, therefore, reduces the risk because that person is already sure that there is a certain market for this particular book. And therefore, the first printer loses out a whole lot more because the first printer could therefore be innovating on a large number of sets of volumes, some of which may not have done well in the market. And therefore, the first printer or the real innovator would be discouraged.
(Refer Slide Time: 23:07)

So, from this point of view it was possible therefore to identify two kinds of relationships in printing, one was the relationship between the author and the printer. Now, what is very interesting to note is that this is a relationship which may not actually have always been because printers would pay much regard to the author.
Sometimes they would just take a manuscript without even knowing who the author was, but there is notionally a relationship between author and printer and other printers’ commissioned works, as we have seen in our discussion on the effects of printing within 16 to 17 century Europe, the aftermath of printing.
So, sometimes printers would commission works and therefore, there is that relationship between author and printer and each of these relationships are potentially monetary relationships, because the printer would probably pay the author a certain amount of money, but there is also another relationship, that is the relationship between various printers over the right to copy the text.
So, printers would get into certain rivalries or maybe sometimes associations, remember the act of printing is very time consuming and requires a lot of effort and requires a lot of capital input. Unlike just photocopying a book. So, let us not look upon think of piracy with the lens of the modern day photocopy machine, because even the pirated, for the printer to be able to pirate, they will have to have to create the lattice of the movable types and then be able to produce the book and that is a time consuming process that they will have to earn a lot of, they will have to employ a labor force in order to be able to do that. So it is not so easily done.
And if printers are sort of taking on each other's copies and producing them, then it certainly leads to a souring of relationships between printers, there has to be a certain understanding between printers in fact, the scholars of book history trace correspondence between various printers where they treat each other, they threat each other in order to ensure a certain kind of balance between printers.
What is understated in this is also that if there is a relationship between printers, there is also an understated relationship between print workers because remember, the workers are moving from one printer to another, when one printer does not have a job for them, they move to search for job, sometimes within a certain town or in most cases, across different towns and have to travel a whole lot more.
And they would also be carrying some secret, some technologies of production, they are assisting the process of the development of the printing industry by carrying, being carriers of knowledge which are otherwise hidden within secretive processes, there could also be collaboration between printers, who would gain from each other's texts by translations of them, and various other possibilities would be there.
(Refer Slide Time: 26:54)

And however, it was not until the reformation was well under way with the work of Martin Luther until that was in place that, that was when the church actually grew suspicious of the blasphemous potential of the printing presses. And it was then that a third relationship developed that between the state and the printers over the right to print books.
And so in the Long Revolution in England, where the balance of power shifted gradually from monarchy to parliament, information played a key role. The violent conflict made 17th century Civil War gave way to party politics in the lead up to the Glorious Revolution of 1688.
As we have seen, the church and the monarchy was always suspicious of the growth of secular literature and the freedom assumed by the layman in the pursuit of such literature in various instances. During the 17th and 16th centuries, the crown tried to quell the voices of the opposition by invoking direct censorship or through stationers’ monopoly. But the bourgeoisie in its ascendancy devised ways of overcoming the challenges it faced and ensuring a free distribution of ideas within its fraternity.
The monarchy placed restrictions on print, the Bourgeois writers made use of script. This scribal culture which had registered a decline by 1640 was revived after the restoration of the monarchy to circumvent censorship. So, what we see is that when the monarchy is trying to place restrictions, writers would use manuscripts, a manuscript circulation, scribal circulation in order to circumvent the restrictions that have been placed by the monarchy.
So, if mechanization helps censorship, then scribal production helps transcend that censorship. So, there is a certain relationship between the way the law operates and the way and how technology operates, law is assisted by a certain technology, a change in a certain technology can help subvert the law.
So, and this is something that we will see through history that there is a certain relationship between technology and legal processes. So this was particularly true of the dissemination of anti-Cromwellian and anti-Caroline satirical writings. So, there is satire on specific political figures this will not be printed or published because those are traceable, there is chances of action, whereas scribal writings are something that can easily be passed on.
For instance, very recently, there was a very large protest movement somewhere in South East Asia, and when protesters and millions of them tried to gather in the center of town, they were very careful not to use their transport cards because the transport cards could identify who all participated in a specific, the government could track who are participating in particular protest movement.
So, though the transport cards can make mobility a lot easier, you do not have to queue up for a particular ticket, to buy the ticket it saves a lot of time. It can also lead to loss of anonymity and therefore it can lead to a certain kind of surveillance. So on that day when people were going for these large protest actions, they all queued up to purchase tickets and did not use their transportation cards because they did not seek to be tracked by the surveillance mechanisms.
So, technologies can operate with the law, with the acts of censorship in very curious and myriad ways and we need to be aware of these kinds of effects when we are studying copyright which is a legal provision operating within the creative universe. So while circulating texts, the authors were not perturbed by the possibility of their false appropriation, but were motivated in order to dismantle what they felt was an oppressive rule.
So, in this particular case, what was happening is that and we saw that with Voltaire, right? Voltaire was not interested in the money. It is another fact that for Voltaire he earned his money through his estate, through other means, he did not depend on printing to earn money.
But there were instances of other writers who would be more motivated ideologically rather than through monetary means, and therefore, for them if their work is being printed by unknown printers, they would only be happier because that is leading to a certain spread of ideas. So that works to their advantage. So, there is no one way in which copyright actually, the arguments of copyright may not actually hold true, because it does not reflect the various sentiments that govern the creation and distribution of art.
(Refer Slide Time: 33:30)

In the 17th century, in England, as well as the larger in Western Europe, there would be numerous occasions when a book would be printed without the author's knowledge and sometimes without even knowing who the author was or without acknowledgement because printers were looking for manuscripts they found to be printed and if they found a certain manuscript could have a certain market value or potential, they would use it in order to publish and make a profit.
That kind of situation did exist and that would therefore call to question the relationship between the author and printer, or the lack of one, really. And it was also possible that the version which was printed would have been copied many times and would be an imperfect copy of the work. So, depends a printer in Maine, in Germany may pick up a certain manuscript and someone in Leon may pick up another version of that manuscript and the two versions get into print without any standardization.
It could also be as we saw, in the case of Voltaire, that there could be multiple additions so the authors could make changes to the original which should not be reflected in print or may reflect in print in another edition. So there could be multiple print editions, which are divergent from each other very similar to the kind of manuscript tradition which we were talking about, where there was no standardization and therefore, people were probably referring to very different kind of manuscripts.
But in this particular case, of course, there will be much larger print run for each particular edition and certain community of people would have a standard text to deal with. But all these slowly get systematized in the era of printing and you get towards a more standard volume. Point to be noted here, that in the digital universe, of course, we see so many versions of every single text, it could be with slight modification be appearing on different platforms in different parts of the world. And, so we are here once again returning to that kind of a creative atmosphere.
Now, since authors have not started depending on printing of their books for their livelihood, they continue to view the manuscript as the primary source of circulation, the author is really dependent on patronage structures, they did not come to be depending on the market for their earning or for their livelihood, they were dependent on the patronage structure.
So, authors did not have that kind of a claim in the early part of the 17th century, on the earnings that could be got from the market from the print. So, therefore, the demand from the author's side really emerges much, much later, we see that the author's arguments for intervention within copyright regimes start actually emerging much later to and really take shape by about the late 18th and early 19th century more about that later. (Refer Slide Time: 37:10)

So, patronage actually continued to actually guide the creative economy primarily, in certain occasions printers did offer some money to the author, but it was more in the nature of patronage which governed the creative economy. So, printer was an alternative sort of patron of the arts rather than it was not looked upon as a kind of a market transaction, more looked upon as a patronage transaction within the patronage economy.
In fact, there would be cases where specific, when there is a tussle between the monarchy and the parliament, there were cases where in the earlier era, it would be the monarchy which would have their court poets, pointedly the most important would be the poet laureate.
But there would be specific cases where rich politicians, leading politicians of the times would also have specific writers who would work for them in order to write, so to write satires on other rival politicians, as well as to sing hymns or praise of this particular politician who patronizes that particular poet.
So, he becomes kind of Darbari kind or kind of a court poet who is linked to specific political leaders and this is very different from the kind of ideological baggage, the ideological motivations of various writers who would either who take a view either with the side of the Labor Party or the conservatives, sorry not the Labor but the Liberal Party or the conservatives.
And they would write their poetry arguing for and against either of the parties, depending on the political situation. That is a different ideological motivation that is there and that is not paid for relationship and so there are two kinds of motivations that could possibly work for an artist. One is an ideological motivation, the other is a monetary profit motivation.
The other way to look at it is there is a patronage structure and there is a market structure. So, a person can get paid, a person can get earnings through either a market mechanism or a patronage mechanism.
(Refer Slide Time: 40:14)

So, as we have seen that the author was not looked upon as the sole source of a creative work, we have looked at this particular passage, which was a 18th century German description of bookmaking process, where there are multiple people who were looked upon as participating in the book making processes, the scholars or writer was only one component in the book production and was treated as an equal to that of a bookbinder or a type setter or even the brass worker.
So, in this particular definition, there is nothing which suggested any special position or faculty with which the author was endowed and this position is going to change with time and the author is going to be looked upon, who is going to be put on a pedestal and looked upon as this fountain of creativity, but that again is a historical product, that particular understanding of the author as the genius is a historical product.
It was not in evidence in this particular quotation, certainly. And if one looks across history, one would not find any trace of this concept of the author as the fountainhead of creativity. And this concept of the author as genius, when it develops, becomes a very important fulcrum on which the edifice of copyright actually rests, more about that a little later.
(Refer Slide Time: 41:54)