NAME: MERCY KIHUNGI

ADMISSION NUMBER: BLA/2015/21602

UNIT: INTERLECTUAL PROPERTY

CAT: 1

QUESTION: The evolution of copyright in England

was not initially designed to protect Authors but
rather as a tool of censorship. Discuss
 EVOLUTION OF COPY RIGHT

Historically copy right was born in England but what was the sole purpose of inventing copy
right in England, was it to protect the authors or for censorship? Before dwelling into the issue of
protection of authors vis-a-vis censorship it is important to understand what copy right and
censorship mean.

Copyright is a form of intellectual property law that protects works of the mind. Some people
call it a branch of intellectual property dealing with expressive forms of ideas. In Harper & Row
Publishers, Inc. v. Nation Enterprises, for example, the Supreme Court characterized copyright
law as the “engine of free expression.”1

Censorship on the other hand is the suppression of speech, public communication, or other
information, on the basis that such material is considered objectionable, harmful, sensitive, or
"inconvenient" as determined by government authorities or by community consensus. On the
positive angle, to censor is to act so as to change or suppress speech or writing that is condemned
as subversive of the common good but on a negative angle, it is abused a lot by ruling regime to
hide their misconduct.2

Having understood what copyright is then how did copy right come to be, how was it invented?
What was the purpose for its invention, was censorship one of them and was the purpose
achieved? To properly understand this it is important to go back to the history of copy right so as
to fit in the brain of the inventors.

The history of copyright can be traced to London. In 1403, a guild of writers of text-letters,
lymners, bookbinders, booksellers, and possibly parchminers, was formed in London. After The
invention of the printing press by Johannes Gutenberg in the 15th century, printing technology
was brought to England by Caxton in 1477, the composition of the guild tended to consist mainly
of printers and booksellers.3 Naturally, with the advent of the printing press, printed books were
cheaper than hand-copied ones. Unfortunately, it also meant that pirating another’s book would
be comparatively easier. When piracy was easy, a prisoners’ dilemma existed among the few

1
471 U.S. 539, 558 (1985).
2
The new encyclopedia Brittanica,vol.3,Micropaedia,15thedn.,1991
3
The printing press
printers, for each could free-ride on the other’s investment and payment for manuscripts. While
this as a negative to them, to the public it as a plus. The printing press had revolutionized the
way people spread information. Here at last as a cheap and quick way to make copies of books
and a very accurate one too.

The writers, of course, were thrilled to have more published books and a lot more readers. This
meant that anything and everything could be written including information regarding the state
and other powerful institutions like the church.

The state and the church were furious. Suddenly they could no longer control what people knew.
Works of dissent and criticism were becoming just as circulated as the bible and any other
government approved document. While the menace of printing was spreading throughout the xv
century, the church lobbied intensely across Europe to ban this new technology that they
considered to be poisoning people’s minds and souls.

In 1535 the church of France even managed to enforce a law which forced the closing down of
all bookshops. It also stipulated the penalty of death by hanging for anybody who used printing
press, but this made bootleg distribution channels bigger, because people were just starving for
more things to read.

Queen Mary 1 in 1557 found herself unable to cope with the number of artificial works that were
being printed, so she came up with a different approach. Rather than trying to censor everything,
she started a select exclusive club which took ownership over all printing activity in England, the
London Company of stationers; as were then referred to. The company basically worked as a
private censorship bureau.

The right to print was restricted to two universities and to the 21 existing printers. Books had to
be first approved by the crown’s censor and the stationers acted as a for-profit information police
force with the right to confiscate and destroy any unauthorized presses and books.

Conveniently for English authorities, the guild’s practices provided an infrastructure for
controlling (i.e., suppressing) publication of heretical and seditious materials. The English kings
and queens were quite willing to grant to the Stationers’ Guild control over the publication of
books in the realm in exchange for the guild’s promise to refrain from printing such dangerous
materials. The queen motivated the guild’s members financially and commercially. She managed
to make sure that the government got its way. People were allowed entertainment because there
was obviously a lust for reading but only as long as nothing politically destabilizing was in
circulation. This monopoly over information rather served the booksellers and the governments
interests.

Over time, the Stationers’ Company became the predominant copyright system. To ensure
harmony within the ranks, the guild established a registry system for staking claims in books.
Members entered into the guild register the names of books in which they claimed printing
rights, whereupon other guild members were expected to refrain from publishing the same book.
While some stationers in this era were surely noble fellows who sought to enlighten the public,
the private copyright system of the pre-modern era mainly functioned to regulate the book trade
to ensure that members of the guild enjoyed monopolies in the books they printed. This system
was, however, conducive to taking on a second function; censorship. The authors weren’t even
recognized as the real writers in the company register and truly that was not much of a concern to
the queen then, so long as what was printed was not against her wishes.

So far it is evident that English kings and queens through granting letters for patent to certain
printers conferring on them exclusive rights to print certain types of works, was an auxiliary
system of regulating the printing trade this in time was folded into copyright.

The pre-modern copyright system undoubtedly promoted freedom of expression by making

books more widely available. However, this was an incidental byproduct of the market for
books, not an intended purpose of the then-prevailing copyright system. Far more harmonious
was the relationship between copyright and censorship in that era. Men burned at the stake for
writing texts that were critical of the Crown or of established religion, and printers of such books
could expect no better fate. The stationers’ copyright regime was part of the apparatus aimed at
ensuring that these texts would not be printed or otherwise be made widely accessible to the
public.

Copyright scholars such as Neil Netanel and Niva Elkin-Koren have emphasized copyright’s
contribution to democratic discourse in providing rights that enable independent writers and
artists to make a living from their expression.4 It is clear that with the passage of time people had

4
Neil W. Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283 (1996)
become aware of their rights and new principles of liberty and democracy emerged. The result
was more and more freedom to people to express their views and freedom of press. But still the
state can impose certain restriction on these freedoms.

While much longer for pre-modern copyright system to die away, the principal development that
ushered in the modern era of copyright, was the English Parliament’s passage of the Statute of
Anne in 1710. On its face, this statute was both a repudiation of several principal tenets of the
stationers’ copyright system and a redirection of copyright’s purpose away from censorship and
toward freedom of expression principles. In addition, it sought to promote competition among
printers and booksellers—that is, to break the stranglehold that major firms within the Stationers’
Company had over the book trade. Censorship held no place of honor in this new copyright
system.

The Statute of Anne achieved these goals in several ways: First, the act granted rights to authors,
not to publishers. Second, it did so for the utilitarian purpose of inducing learned men to write
and publish books. Third, the act established a larger societal purpose for copyright, namely, to
promote learning. Fourth, it granted rights only in newly authored books. Thereafter, ancient
books were in the public domain and could be printed by anyone. Fifth, it limited the duration of
copyright protection to fourteen years (renewable for another fourteen years if the author was
living at the end of that term), thus abolishing perpetual copyrights. Sixth, the statute conferred
rights of a limited character (not to control all uses, but to control the printing and reprinting of
protected works). Seventh, it imposed a responsibility on publishers to deposit copies of their
works with designated libraries. Eighth, it provided a system for redressing grievances about
overpriced books.

The modern copyright system embraced Enlightenment values that influenced the framers of our
Constitution which empowers and secures authors and inventors for limited times an exclusive
right in their respective writings and creativity.

Although the English copy right somewhat protected the authors we cannot entirely say that that
was their major aim. As envisaged in the above discussion, it had everything to do with those in
power and needed some sort of control over their subjects. And therefore, while today, we think
of copyright law as a way to protect the property of creators, English copyright law was actually
based on systems designed to enable censorship and allow the government to control print
works.

REFERENCES:

1. PRIVILEGE AND PROPERTY: ESSAYS ON THE HISTORY OF COPYRIGHT

RONAN DEAZLEY, MARTIN KRETSCHMER AND LIONEL BENTLY (EDS.) | JUNE 2010
2. THE PUBLIC DOMAIN – JAMES BOYLE
3. COPYRIGHT IN HISTORICAL PERSPECTIVE (1968), L. RAY PATTERSON,
4. THE INVENTION OF COPYRIGHT (1993), MARK ROSE, AUTHORS AND OWNERS:
5. A HISTORY OF BRITISH PUBLISHING (1988), JOHN FEATHER