Thursday, 13 May 2010

Statute of Anne: Tempora mutantur, but not really

Since 1710, humankind has accomplished many technological and scientific achievements which have improved the quality of life. Such a statement can, of course, be easily made from the “superior” hindsight of 2010. Perhaps, in 1710 people were equally overconfident that “their” achievements marked the “end of history”. After all, what they lacked in digital innovation they made up for in book printing – a revolutionary technology already firmly established in Europe following the invention of Johannes Gensfleisch zur Laden zum Gutenberg.

However, the size of the brain of the self-declared homo sapiens has not increased since the days of the hunter gatherers over 10.000 years ago. Every succeeding generation continues to fight wars, believes it invented sexual intercourse and that the end of the world is nigh. We still haven’t uncovered the elixir of eternal youth. Or what happens after we die.

The only difference between the 3rd Millennium (AC) and the 8th Millennium (BC) man is indeed based on education, innovation and culture - all areas covered by the Statute of Anne and subsequently by modern UK copyright.

Education, innovation and culture have been - and still are - the driving force of human evolution. They are the foremost features in our development. When we speak of “intellectual property” we are dealing with fundamental issues.

Notable is the reference to learning and authors in the Statue of Anne: the "Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” The underlying philosophy of copyright has been examined comprehensively since its first written manifestation in 1710.

The balance between the rights of the author and the interests of the general public have been subject to legal analysis in the UK - starting with Millar v Taylor and Donaldson v Beckett (in 1769 and 1774 respectively).

Copyright, as a property right based on the skill and labour of the creator (John Locke), and its continental younger sister “author’s right” as established during the Enlightenment period (Germany: Immanuel Kant, Johann Fichte; France: Le Chapelier), are based on the natural right of the individual creator in his/ her creativity as part of their personality/ inner self. In the words of Mr Justice Willis in the judgement of Millar v Taylor (1769): “It is certainly not agreeable to natural justice, that a stranger should reap the beneficial pecuniary produce of another man’s work.”

Copyright and author’s right are equally built upon two fundamental and overarching principles: rewarding and protecting the creator and allowing a mechanism by which those who invest in creativity can be rewarded. It also provides the enabling framework for right holders and intermediaries (producers / commercial users) to offer creative works to consumers in the way they want to consume them – regardless of whether they inhabit the 18th Century or the 21st. Copyright and author’s right are a successful part of the history of mankind providing freedom and liberty to be creative. For over 300 years the system has proved to be remarkably adaptable to technological and scientific changes based on the solid foundation of the two principles of copyright and author’s right.

It is these two principles embodied in copyright/ author’s right which underpin the law of the creative, the law of the individual, the law of the human being. In doing so, copyright/ author’s right replaced a century’s old system of feudal privilege and patronage - something humankind has overcome through education, innovation and culture. Copyright/ author’s right constitutes “progress” - a democratic mechanism which is agnostic as to its subject, its politics and (for better or for worse) its quality.

Copyright/ author’s right represents the individual’s freedom to create. It is the currency of creativity. That evolution is perhaps best illustrated by the introduction of the 1791 French Copyright Act, “The most, sacred, the most legitimate, the most indisputable, and if I can say so, the most personal of all the properties is the work and fruit of thought of the writer.”

Copyright and author’s rights have been and still are the basis of the economic success of the creative industries. In addition to the economic value of the creative industries, our creators, artists and performers define our society and culture.

Whilst the principles and the philosophy of copyright and author’s right have not changed since 1710, the application of copyright and author’s rights must continue to adapt to the changes triggered by science and technology.

Licensing remains the – preferably unseen – and symbiotic mechanism by which creators, right holders, users and consumers can coexist in harmony.

But it is still worth promoting the one thing that distinguishes humankind from beasts – our language, our music, our culture.

Copyright and author’s right sit at the heart of a system that enables creators to derive financial and moral benefit from their work. It is copyright that enables creators, and those who invest in their creative talent, to build value from that creativity.

This was true in 1710. It remains so in 2010.

1 comment:

  1. On behalf of Uma Suthersanen:

    I completely agree with this view. Modern copyright law empowered the author with property rights, and more importantly fundamental freedoms. Especially important, as Florian has stated, the freedom from patronage and privilege. The last 300 years has seen national and international communities forging a strong bundle of rights, and ensuring its legal certainty. And yes, this has been beneficial not only for the individual author, but also for all related industries including recording, publishing, internet and broadcasting industries. And yet, somewhere along the line, I believe we missed a key perspective of all stakeholders and actors. I have spent the last two weeks trying to work out a clear, simple educational exception for an Asian LDC allowing them to use works for the national development and strategic purpose of ameliorating the poverty and literacy rate of the country. An LDC which has 30% of its population below poverty level. And it was difficult. The Berne Appendix 1971 is unjustifiably complicated (especially when compared with the clarify of the rights of authors); the TRIPs Agreement left me sleepless for 2 nights as I grappled with how I could take advantage of Articles 7 and 8 (on socio-economic purposes) and yet not fall foul of Article 13 - the well-loved three-step test. The WIPO Treaties teased me with the elusive words " and public interest" in its Preamble. And yet, it should have been clear. Somewhere, we forgot the clarion call of the Preamble of the Statute of Anne - "for the Encouragement of Learning". When a country is so poor that it cannot afford books or online licensing agreements, there can be no question of conflicts with the author's normal exploitation or prejudicing the legitimate interests of the author. When we ask LDCs to join us in our WTO club, and ask them to make their laws TRIPs compliant, thus giving rise to a whole new industry of which I admittedly belong - the OECD expert who has to write and update their laws, surely it must be a simple step for authors, publishers, broadcasters, producers and trade groups, and collecting societies to agree to allow an educational exception which allows unlimited usage of materials for such purposes as to allow a country to lift itself from unjustifiable poverty levels. Creativity, talent, culture are noble causes, and I thoroughly support them. Yet, we can only harness the creativity within a country by allowing them just a little breathing room. It is not only in their public interest, but it is in our public interest to have most nations reach the same levels as us - so that we too may partake in their cultural and economic success. If the choice is between an author's right and the public right, surely it must be the latter? Or as Victor Hugo said: "Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient—le mot n’est pas trop vaste—au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous." (Victor Hugo, Discours d’ouverture du Congrès littéraire international de 1878, 1878