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BBC Sounds. Music, radio, podcasts. This is In Our Time from BBC Radio 4 and this is one of more than a thousand episodes you can find on BBC Sounds and on our website. If you scroll down the page for this edition, you'll find a reading list to go with it. I hope you enjoy the programme. Hello. In 1710, the British Parliament passed a piece of legislation entitled An Act for the Encouragement of Learning.
It became known as the Statute of Anne, and it was the world's first copyright law. Copyright emerged as a way of balancing the interests of authors, artists, publishers, and the public in the context of evolving technology and the rise of mechanical reproduction. But it has always been a contested issue, with well-known figures such as Alexander Pope, William Hogarth, and Charles Dickens joining heated debates about originality and ownership that continue to this day.
With me to discuss the evolution of copyright are Lionel Bentley, Professor of Intellectual Property Law at the University of Cambridge, Will Slaughter, Professor of History at the Sorbonne University, Paris, and Katie McGettigan, Senior Lecturer in American Literature at Royal Holloway University of London. Lionel Bentley, what is copyright? Copyright's the legal mechanism that allows an individual or corporation to control the exploitation of cultural works.
That means the reproduction of the expressive form of the work as opposed to the reproduction of the ideas contained within the work, but also the public performance of the work or communication to the public of the work or adaptation or arrangement or translation of the work. So copyright covers, things like literary works, books, novels, poems, musical works, artistic works such as sculptures, paintings, drawings, photographs...
dramatic works and also things like films, sound recordings. What was the situation before copyright was introduced?
So before 1710, there were two kinds of regime that gave rights that were precursors of copyright. First of all, there were printing privileges granted usually by the king to somebody, such as the privilege granted to tottle over printing of books relating to the common law. But there were other privileges relating to printing the Bible, psalters, almanacs and so forth.
And those were often indefinite, but sometimes time-limited, and they sometimes applied to particular works. In addition to those, there was a combined guild plus censorship scheme of regulation in the form of the Stationers Guild.
And the Stationers Guilds was incorporated under Queen Mary, and the incorporation provided that anybody who wanted to print a book had to register it in the register book of the Stationers, and the books could therefore only be printed by Stationers. In the pre-Saturday Van era and in the early 18th century, it wasn't really called copyright. It was often called things like literary property copyright.
But the term copyright means right in the copy, and the copy was the manuscript of the author. And so it became copyright because it was rights in the copy, in the manuscript, not because it was a right to copy, even though, as copyright has turned out, the reproduction right has become one of the most important components of the legal regime. Well, Will Slaughter, can you explain the 1710, this Statute of Anne?
And what was its impact? Well, it was passed in 1710 during the reign of Queen Anne, and so that's why it's commonly called that. But it was the act for the encouragement of learning, and it could be seen as a radical departure from the kind of press licensing system that Lionel just described. Why? Because these previous privileges come...
combined both an authorization to print, so censorship, with the exclusive right to print. And now the Statute of Anne was saying, we're not going to have any more pre-publication censorship, but there is still going to be an exclusive right to print and sell a book that originates with the author,
The author could then assign it to a publisher. At the time, they often referred to them as booksellers because booksellers combined the role of financing the publication and distributing it and selling it. And
And specifically, the act was a change because it provided a 21-year term for existing works. So think of Shakespeare and Dryden and Milton and all of that. Previously, stationers had claimed that they had a perpetual property right in those classic works, even if the authors were dead.
And John Locke and others, when the debate came up, should we renew the Licensing Act, said, this is rather absurd that a single stationer would claim they have a perpetual property in the works of Shakespeare. And even the works of Homer or Livy were being claimed as perpetual property rights. So from 1710 on, according to the Statute of Anne, existing works only had 21 years of protection, and then they would enter the public domain.
For new works, it was 14 years of protection, and that could be renewed once if the author was still living, so that would make 28 years of protection. Why was it called for the encouragement of learning? Well, I think we have to go back to this world in which censorship was the norm, and everybody expected that new press regulations would be passed.
And what is the real innovation here is an attention to the need to encourage a thriving public sphere.
and to use printing in order to encourage the dissemination of useful knowledge. This also was a break from the past in the sense that anyone could register a book in the stationers registered now. You didn't have to be a member of the guild anymore. So that was a kind of anti-monopoly aspect of the statute. And it required for anyone...
any work to the publishers to submit nine copies of the work to be distributed to libraries, the British Museum Library, but also Cambridge and Oxford and the universities in Scotland and so on. However, most booksellers just kept business as usual.
Most of the copy-holding, rights-owning booksellers claimed that literary property was perpetual, that it belonged to the author, who then assigned it to the publisher, and therefore the state, the parliament, could not cut this right short. And so the business actually didn't change much in 1710 because almost every aspect of the law was contested. It was contested by individuals. Why did Daniel Defoe want it so strongly?
Well, Daniel Defoe was part of a debate in the periodical press about what should replace the old licensing laws. Did he use particular books of his own as an example? Well, he actually had some experience with censorship. He had been punished for some of the things that he had written. Such as? The shortest way with dissenters. In 1704, he wrote an essay on the regulation of the press, and he said, look...
Having pre-publication censorship is inconsistent with English liberties, so let's not have licensing anymore. However, if an author publishes something, they should be able to benefit from it.
if the state determines if they've transgressed in terms of blasphemy or in terms of seditious libel or defamation, then they could still be prosecuted. But that would be very harsh, he said. If you're going to hold authors to account, you should at least give them the financial benefit of their writings. And so for him...
Authorship was about accountability, but it was also about ownership. And so he was one of the voices that said, let's have a new statute that provides exclusive rights and writings, but is not linked to pre-publication censorship. There have been battles about this. Can you tell the listeners briefly about some of the battles that had occurred, plunder and piracy and so on?
Well, the most well-known battle is actually a series of court cases known as the Battle of the Booksellers, which took place basically from the 1740s through the mid-1770s. And this was because the major stationers were still acting as though property was perpetual. Jacob Thompson claimed all of Shakespeare, for example, despite what the Statute of Anne said.
So it was a series of more minor booksellers who challenged this and said, look, this is not right. The Statute of Anne says it's term limited. And in particular, a Scottish bookseller named Alexander Donaldson set up a shop in London where he would issue his own editions of classic works and even fairly recent works.
but which, according to the Statute of Anne, had fallen into the public domain. And he was taken to court, and he appealed to the public in pamphlets. He said, look, public utility demands that works be reproduced and that the price go down so that the greatest number could enjoy these works. And that could only happen if we respect the terms of the Statute of Anne. We should not treat authorship as a form of literary property. Instead, we should see it as a limited grant status
somewhat like patents that would be limited in time. Copyright hadn't just been about protecting artists, but regulating and restricting them, hadn't they, Katie?
Yes, insofar as once an author becomes a kind of owner of their work, which is one of the big changes that comes in with the statute of Anne. How do they prove that? How do they prove that an author is an owner of their work? Yes. Well, the question of kind of what precisely the author owns in the work is one that is not really solved by the statute of Anne, which doesn't actually provide definitions for useful terms like author or book.
Those things have to kind of evolve over time. And the question of what counts as the property of the author is one that goes on in the courts. So we could think about a particular dispute that Alexander Pope, the poet, the satirist, brought against a bookseller called Edmund Curl. Curl and Pope had a long history. They didn't like each other very much. One such event in this history is that Pope kind of spikes Curl's drink.
which causes him to have all sorts of horrible symptoms. And then Pope writes the Scurrilous Pamphlet about it to publicise it to everybody. And sometime after that, Pope effectively kind of sets a law for Curl in that he arranges to have some of his letters between him and Jonathan Swift and other authors published in Dublin, which was a sort of Wild West of copyright at that point. And so what Curl does is then he reprints them in
in Britain, and Pope takes him to court over this and says, hang on, I've got a copyright in those letters and you can't print them. Carl says, no, I don't think that's true. These are private letters. They were never meant for publication. They're familial letters. And also, maybe you don't own the copyright in them. Maybe the person that you sent them to owns the copyright in them. And so this ends up in court and it's decided in Pope's favour. The judge makes two, I think, quite interesting points here.
One is that the author continues to have property in these words, even when he's disposed of them, even when he sent them to someone else. So there's a disconnection then between the property in the words and the property in the object.
And the other thing that he says is that the familial letters, even though they're not intended for publication, because they have creative value, because they have value and expression, they should be protected by copyright. And this is interesting because it brings into the author's property, into the scope of authorship, all sorts of things that might not have been considered part of this before. My one coda to this.
Such as familial letters, such as the letter that you write to your friend. It's not intended for publication. You don't want to make it public. But Pope's case means that it becomes copyrightable property.
My kind of coda to this is some listeners might remember that Meghan Markle or Meghan Sussex, as I think she now likes to be called, sued the Daily Mail for publishing a letter that she wrote to her father. And one part of the suit was actually about whether she had copyright in it as the author of the letter and that they had published too much, that they had breached her copyright. And also the Daily Mail tried to argue that there wasn't a kind of intellectual creative value in this letter and they lost on that fact.
So all of these cases that take place in the 1740s still have a resonance as how we think about authorship and property and copyright today. Did copyright change over the course of the late 18th and early 19th century? Yes, it did. And I think one of the biggest changes in the 19th century is the push towards the internationalisation of copyright.
So when the 18th century statutes and the cases that sort of modify them are thought of, it's all under the premise that the author is writing and publishing and circulating the work in the same nation. But what happens in the 19th century is that there is much more transnational circulation of physical books, so books
actually being transported, perhaps printed in one country and then taken to another country, but also texts crossing boundaries. So, for example, a text written by a French or an American author being printed in London. And it's suddenly deemed that, or the question suddenly arises, rather, as to whether there is a copyright in those texts, whether they can be protected under the same laws. So there is a push that's gradual, but persistent, I think, towards a greater international cooperation between
across the 19th century that kind of reaches its climax in 1886 in the Berne Convention to which the United Kingdom is one of the original signatories that allows for all the countries that sign up to it it regularizes their practices between them and means that a work that's published in one country who signs up to the Berne Convention gets protections in others.
Even in translation?
She goes to court to try and prevent the publication of a German translation of Uncle Tom's Cabin on the basis that it breaches her copyright within the United States. But the judge in that case takes quite a narrow interpretation of copyright and says that because the translation is not the same words...
then she can't have copyright. But he actually makes another interesting point in that he says, creations of the genius and imagination of the author have become as much public property as those of Homer or Savanta. So he's saying that once so published as her characters...
This is kind of interesting because Stowe is writing at a moment in which people can be property. So she's writing about slavery. And so these questions of the rights that she has over the characters that she creates, she's writing about slavery.
get incredibly entangled with sort of wider concerns about who owns what, whether people can be subject to ownership. And I think this is one of the really interesting things about copyright is that it's never just about protecting works. It's always kind of pinging off other ideas that are in the ether in a particular moment. Thank you. How did copyright law start to include visual arts?
Well, the first form of visual arts that was protected by copyright were engravings. These are engraved prints in the 18th century. Why were they included first? Well, you could argue that they made sense to be included first because they were historically part of the book trade. The printing trades included both the printing of text on letterpress and the printing of engravings. But the main reason that it happened in 1735 was an initiative of William Hogarth, who
who was an artist and engraver, and there was an increasing amount of complaints by him and other engravers that others were copying or pirating his designs. And so Parliament passed in 1735 an Engraving Act, which protected initially only original designs by the engraver himself.
And then later in the 18th century, this was expanded so that a print seller or print publisher could, for example, purchase the rights to engrave a famous painting and that this would be secured under the Engravings Act as well.
So, for example, a famous painting might be exhibited in public, the print seller would advertise that you can come and see the painting at such and such a gallery, and then the print seller would secure the exclusive right to reproduce that artwork in the form of an engraving. Would you like to take this on? Yeah, so after the Engravers Act, there were acts that protected initially sculptures in 1798, and
and then in 1862, paintings, drawings and photographs. The Sculptures Act is quite interesting because it also, rather like the Engravers Act, had a main sponsor who was an artist who painted mainly animals called George Garrard.
And Gerard had the support of the Royal Academy, but he also got funding from the Ministry of Agriculture. And you might think that's a bit strange. Well, what Gerard was doing was creating models of cattle to educate British farmers. And he was worried about piracy of the models of cattle. And so he sought this particular legislation, the Models and Busts Act of 1798.
The extension of copyright to paintings, drawings and photographs occurred quite a lot later in 1862. And that seems quite strange because paintings and drawings are things that today we would think of as archetypal examples of creative works that would fall within the notion of literature and art that's come really to be synonymous with the field of copyrights.
But paintings and drawings weren't protected for the first 152 years of copyright from the Statute of Anne. Now, the question then arises, well, what suddenly happened in the mid-19th century to make it desirable to protect them? And I think the answer are a few things.
One is there were these international agreements that Katie was mentioning, and many of the other laws in foreign countries protected artistic works. And so there was a sort of pressure within Britain to transform our copyright system to accommodate paintings and drawings. And then there was a certain amount of instability that emerged in relationships between painters and engravers as a result of the emergence of photography.
and photographic reproduction of engravings that destabilised quite lucrative arrangements that existed in the way that Will was describing between painters and engravers, where a painter would give access to an engraver to make the engraving of the painting in return for a quite substantial fee. So a good example is David Wilkie, and he would get something like £1,200 in 1822 for selling the right to engrave one of his paintings.
I'm Zing Singh. And I'm Simon Jack. And together we host Good Bad Billionaire. The podcast exploring the lives of some of the world's richest people. In the new season, we're setting our sights on some big names. Yep, LeBron James and Martha Stewart, to name just a few. And as always, Simon and I are trying to decide whether we think they're good, bad or just another billionaire. That's Good Bad Billionaire from the BBC World Service. Listen now wherever you get your BBC podcasts.
Let's start at photography then. Did that change the way that copyright was looked at? Yeah, I mean, photography is interesting because, like many new technologies that copyright has encountered, it raised two distinct questions. One was whether the use of photography to reproduce works was an act of infringement and one that the owner of a prior work should be able to control.
And the other was whether these new entities produced by the new technology, photographs, should fall within the sphere of protected works themselves. What was the argument there? The argument there was there were arguments on both sides. So the argument initially raised in favour of protecting photographs was mainly an argument based on labour and investments.
So the sorts of photographers who were claiming copyright were photographers who travelled a long way to take photographs of interesting places that then were published back in Britain. Or Roger Fenton, who was employed to go and photograph the Crimean War by a Manchester publisher and came back and the photographs were published but soon pirated.
and the Manchester publisher wanted some protection for its investment. How did you set about getting that protection? So there were some ongoing, as I mentioned before, there were some ongoing moves towards protecting works of art, paintings and drawings, and the question of photographs got blended in with that debate, and there were various bills produced before Parliament in which...
The question of protecting photography was discussed. Sometimes people said, no, this is a mechanical process. This shouldn't fall within the realm of copyright. And some people said the opposite. Some people said it's not just skill and investment. Actually, these are creative works that are quite like the creative works that you're protecting.
And in the end, the 1862 Act protected original paintings, drawings and photographs. Katie, what's the relationship between copyright and the idea of authorship? I think ideas about what authorship is and what copyright should protect or what copyright is for have developed hand in hand.
And so before we have copyright, before we have the Statute of Anne, our ideas of authorship are often quite different and perhaps I would say less vested maybe in a notion of originality. If we think about someone like Shakespeare, obviously part of Shakespeare's contribution to literature is
is his amazing and original expression. But the stories that he's telling aren't new stories. Other people have told them. He borrows the stories and he tells them in a new way. So there's this idea of perhaps what, in maybe legalistic terms now, we might call a derivative work, right? Something that someone has done before.
When you want to copyright something, the idea of original expression, something that hasn't been said before, something that is fundamentally new comes in. And so the author as a kind of inventor of something entirely different, I think that's very much linked to what copyright can protect.
Wordsworth comes up here, doesn't he? Wordsworth was one of the authors in the early 19th century that was very interested in extending the duration of copyright. So initially, it was a very limited term. And that decision in 1774 of the House of Lords that said the statute of Anne is the law of the land, and it's 14 years renewable once, so 28 years total. Well,
Well, Wordsworth made an argument that was increasingly common, and it was related to this point about originality that Katie just made. That is to say, we've moved from a world where ideas and writings are seen as divinely inspired to a world in which knowledge is very secular in the age of the Enlightenment, and even more so in the age of Romanticism, a world where the individual creator is seen as
creating something entirely new, and it is something that comes out of their own personality, and that is the origin of the property. And if that's the case, if we have a property in our own person, and we are truly original in that sense, then how could this copyright be limited? Moreover, Wordsworth said, and this was in response to early criticisms of lyrical ballads that first came out in 1798, he said,
Truly great works of genius will not be immediately understood by the public. You have to kind of train the public to develop new taste, to understand truly original compositions. And therefore, some works will not immediately capture the attention of the market, and they will not make a lot of money for their authors. And therefore, an argument for extending the copyright term
to include the descendants of the author is that great works take time to capture the public imagination. So Wordsworth's children and grandchildren should benefit from that. On the basis of those arguments, copyright term was indeed extended.
So Wordsworth's arguments had some influence on the development of copyright. This idea of a copyright that extends and extends past the life of the author has become, I think, more problematic in the 20th and the 21st century as people who were the descendants of famous authors have sought to exert particular forms of control over their estates and
after the life of the author. So one example that people might be aware of is Stephen Joyce, who is the grandson of James Joyce, was particularly litigious in shutting down the publication of works that he felt infringed on his family's privacy, scholarly works that perhaps did not show his ancestors in the lights that he wished.
So the sense of whether that originality that the author vests in it that allows it to be protected for their life, that allows it to be something that is handed down, which again is a concept of property that sort of ties back to tangible property, right? If you have a house and you own it, you can leave it to people. Whether that should work in the same way with copyright is, I think, much more contested. And we have people who perhaps had no hand in creating the original thing, exerting quite considerable control over it.
I just wanted to say that there's another way of thinking about this too, is that this conceit of the original author
very creativity-based view of authorship and ownership creates a problem. That is to say, then you have to ask the question, what is an author and what constitutes a work of authorship that will rise to this level of creativity? So you have lots of works in the 19th century, dictionaries, which are very expensive to produce, encyclopedias, reference works of all kinds, and
journalism, which is not associated with creativity in the same way that the lyrical ballads and a Dickens novel are. And so it really raises the question of what is going to count as authorship. Is there any sense which along the way, the copyright restrictions were actually restricting development of the arts?
Yes, there is. And certainly this question of whether copyright should be perpetual or not is all tied in to this fear that copyright legislation, which is always phrased in this term of encouraging learning, encouraging the arts, might actually end up discouraging it because people can't get access to works they need because works aren't allowed to circulate.
And certainly in the United States, this is one of the main ideas behind the creation of copyright is not just to protect authors, but to ensure that works go back into the public domain, which is a term that we haven't really talked about much yet. But it essentially means all works that are not protected by copyright that can freely circulate so that you don't restrict authors.
the ability to circulate, to publish a work for a long period because that's going to get in the way of having a learned and erudite population who can take part in the discussions of the day, which is particularly important in the United States because it's a democracy. And to have a democracy, you need to have an informed citizenry. So there is always this tension in copyright between ensuring that you protect copyright
So that you're encouraging authors to create new things, but also that you limit those rights so that people can get access to knowledge easily and at an affordable price. As we mentioned America, what were the significant differences between British and American copyright law? And how did they play out among authors such as Dickens?
Harriet Beecher Stowe, Melville and so on. In the United States, copyright is connected to citizenship. You cannot have a US copyright until really into the 20th century unless you are a US citizen. So that means that Charles Dickens, who's everyone's favourite example, gets very annoyed because he cannot initially control the reproduction of his works in the United States. They circulate in formats that he may not like. He doesn't get any money from them. And
I mean, Dickens complains a lot, but in some ways he does also benefit from this lack of copyright. He's incredibly popular. He can go on speaking tours. So I would say this is always a kind of balance in that copyright is never the only game in town. There are always other ways of authors exerting rights over their work. There are always other ways of authors benefiting
from them. What I would also say is that this kind of disparity in copyright between the United States and Britain, in which British authors cannot get copyright in the United States, but under circumstances, American authors can have a copyright in Britain, in that for a period in the mid-century, if they publish their work first in Britain and then publish it in the United States, they can have a copyright. This kind of complexity of copyright actually leads to a lot of kind of interesting creative strategies that
So there are attempts by British and American authors to kind of co-write works in the hope that they will have copyright on both sides of the Atlantic. Harriet Beecher so pitches this to Elizabeth Gaskell, the kind of industrial novelist in Britain. They don't actually write this work, but they certainly seem to have this idea that maybe if they collaborate, they can produce something that they can both benefit from.
Publishers also develop a lot of interesting tactics to get around this. So once prior publication for American authors in Britain, once the House of Lords decides that that doesn't secure a copyright, what American authors and British publishers start to collaborate on is bringing American authors within British territory, which does get them a copyright. So at first it means bringing the author actually over to Britain. But in the 1860s, a publisher called Samson Lowe realises that, of course, the better solution is just to send them up to Canada.
for a couple of weeks. And so he first does this with an author called Maria Cummings and her book Haunted Hearts. She has a nice little holiday in Montreal. He publishes her book and it's decided in the courts that this does secure a copyright. Copyright was codified in 1911 and applied to a variety of cultural forms, including music and drama. It marches on, doesn't it, copyright, into every area. Can you take that up? Yeah, sure.
Sound recordings had emerged, Thomas Edison's sound recordings and things like that, and so they were included in the 1911 Act where they were called contrivances for the production of sounds, and they were treated as if they were musical works. And film had obviously emerged by then, and so we have a provision in the statute treating cinematic productions as dramatic works. How did you develop this?
Rapid expansion. Yes, I'd like to stay with music for just a little bit. What we're initially talking about is the copyright and the musical score.
And the business model there was to have the exclusive right to reproduce, to print the musical score. So from the end of the 18th century, that's recognized that a composer has an exclusive right in the score. What's happening then with the arrival of recorded sound is shouldn't composers have the right to authorize whether or not there's a recording made of the music?
And it's a very parallel development in Britain and the United States. And in the United States, there was a particular composer who was very vocal about this. He was an American composer of military marches named John Philip Sousa. He may be known to some listeners for the theme song of Monty Python. But he said that anything that was recorded on wax cylinders or tinfoil and later various polymers was canned music.
And he objected to recorded music because he said the whole model is sheet music. Why? Because families and groups and communities should be producing music. They should be musicians. They should be reading the music and have this collective experience. And if we're just going to listen to these new technologies, the whole soul of music is going to be gone. Well, he was one of the most vocal opponents, but there was a compromise solution that was very interesting, which was to say...
Yes, there will be a right, but once a song is recorded...
anybody else can record it as long as they pay royalty that is specified by statute. So this is known as the compulsory license and is a rather unique solution. So in other words, once a song is recorded, anybody else can record it. And that's why we have the kind of ingenuity of having multiple recordings of the same song. A royalty is paid, but you don't have to ask permission every time.
That's still the copyright on the composition. There's a next step if we want to look at the forward march, and that's the copyright on the recording itself.
And that is something that comes later, I believe in the 1970s, at least in the United States, it's in the 1970s. Here it's the musical, it's the contrivance provision in the 1911 Act. It's already in the 1911 Act, whereas in the United States you have this kind of loophole where there's a composer's right, but then there's a question, well, if you record music, you need a sound engineer, you need microphones, you need equipment, etc.
Shouldn't that labor and investment and that skill and all of that be protected so that somebody couldn't just duplicate the same record? And so that actually takes time to get that over. But it gives you a sense of the different layers of copyright, even in a category like music. It goes, it comes down to minutiae, doesn't it? In pop songs, for instance, people will sue for a phrase.
that has been used in a previous successful pop song. Where do you go there? Well, so the question of things like sampling of music, taking tiny portions of music from a sound recording or from a song...
The law currently says that there's infringement of copyright if you use any part of a copyright work. And that means any part of the work that contains the creativity of the author, whatever that means... It means what it says. But, Melbourne, what is creativity? Are you going to define it for us? Well, somebody's... Paul McCartney sings a song that nobody else has sung and that's it. People pinch bits from it. They're pinching bits from it, aren't they?
Well, that's one view, but the other view is that these are tools from which we can build many more brilliant works. So what does that mean? Hold on. So what? So what? So imagine a sound recording and you can take a little phrase, a couple of notes from a sound recording, and you can put it into your machine and generate a completely different work that's in no way competing with the first work. And the question arises, in those circumstances, should you have to get a licence? Should you have to get permission?
if you have to get a licence and have to get permission, is that impeding this kind of creativity? It's not politically neutral which categories of work or which types of genres of work are policed by this. So, for example, hip-hop music has a very strong sample in culture of taking bits of previous works and repurposing them and making entirely new songs out of them. And when this initially emerged on the music scene, there's a lot of controversy about this as property theft.
And I don't think it's a coincidence that this is a predominantly black art form. I think there are all sorts of ways in this idea of policing who owns what, who has the right to use things, is entangled with other forms of power dynamic in society. Can you develop that? Really, just to say that notions of copyright have changed how we have thought about this notion of borrowing or sampling over time. Even in the 18th century, it's really quite common to take bits of somebody else's work and
and put it together with yours to create something new, to show how you're responding to other people's arguments, which could be seen as a kind of sampling culture or a kind of remix culture. And I guess one creative example that springs to mind when I think about this is the musical Hamilton, which is a lot about this kind of 18th century culture of pamphlets
of borrowing other people's texts, of reprinting bits in different places to make your own arguments, to make something new. And then that musical tells the story through hip-hop music, which is based in the same kind of sampling culture. And I think it's a really powerful way of showing that those practices are creative and they have a long history. Can we look at the most modern technologies and how is that changing copyrights?
Well, if we go back to the question of music, we could think about how in the 1960s and 1970s there were audio cassettes and then in the 1980s video cassettes.
And this created a new problem because you had record producers and movie producers who were worried about individuals who would copy music at home and create substitutes for things that they should buy. And a lot of this was perhaps informal. People would create tapes of their favorite music and share it with friends and so on. But you had this analog copying culture.
And that already raised the stakes for a number of publishers who began to want to enforce this and close loopholes in copyright law. But then with digitization, you have the next step because digitization is totally different in the extent that the copies seem almost perfect.
They can be made instantaneously. They don't require much equipment. Now we can easily copy text, audio, video, everything on the computer, and we can instantly share it with friends. So this really raised the stakes for the copyright holders. What are we going to do? Is there still going to be a business of recorded music? Is there still going to be a business of e-books, of all electronic forms?
Can we come to the rather vexed question of artificial intelligence? I thought you might ask about that. Good. The hot topic of the day. Then you're ready. Yeah. Early on, I described the impact of photography and how it raised two problems, really. The first problem that photography raised was whether it was an infringement to take a photograph of an existing engraving. So the infringement question is,
And the second was whether it should be protected, the outputs of photography, should it themselves be protected? And we have the same kind of debates about AI right now. So the first question is, should training an AI system on copyright protected material be regarded as an infringement of the copyright in that material? And at one level, to train an AI system, you have to make some temporary reproductions of the work.
But you're doing it in a different way, probably, than most reproductions, because the reproductions are not really for the expressive form of the work. They're being made so that the AI system can analyse the work and generate connections between different aspects of the work. And then there's also the question about whether the outputs of AI should be protected, where there's no human creator. And that takes us back again to those debates from the 19th century about whether copyright is for all.
expressions of personality of human beings, the emanation of the soul, the kind of Wordsworth thing, or whether copyright has some other function in promoting investment, that the kind of investment we're talking about in outputs of AI is a little bit shady or unclear. What do you think? What do I think? Well, I think the outputs of AI themselves, where there's no human involvement, should not be protected by copyright, because I do think that copyright should be for human beings.
But that leaves open lots of situations where you'll have AI-assisted works, where people will start with an AI or they'll start with their own work and they use AI to improve it.
And those seem to me to fall within the classic regime of copyright. We near the end now. Katie? I think we're coming back to these bigger questions about who gets to wield copyright. So copyright is one thing, and we might... I don't know if we all do. Maybe we do all agree that protecting people who put time...
and labour and imagination into creating works that we all enjoy, that enhance our lives, that make the world a little bit nicer in bad times, that those people should benefit from that labour. But the problem is that the biggest holders of copyright now are not these kind of individual authors scribbling away in their garrets. They're huge corporations. They're things like Disney, Amazon, and they have massive power to wield the ownership of these copyrights to get what they want.
And so it's maybe not necessarily about the legislation itself or the wording, but it's the way that large entities, large powerful entities are able to manipulate that for their own benefit.
Last word, Will?
ask the question, how is the public benefiting by giving extra protection to these big companies that are producing these generative AI tools? Well, thank you very much. Thanks to Will Slaughter, Lionel Bentley and Katie McGettigan. Next week, it's Paul von Hindenburg, who was president of Weimar Germany twice and appointed Hitler as chancellor. Thanks for listening.
And the In Our Time podcast gets some extra time now with a few minutes of bonus material from Melvin and his guests. What we do now is ask you what you would like to have said that you didn't have time to say. Katie? I wanted to briefly come back to this peculiarity to United States copyright that it is connected to citizenship from its instigation shortly after the American Revolution.
And we've sort of discussed this perhaps in terms of limitation to who can claim a copyright. People like Dickens rail against it. But I wanted to make the point that for particular categories of people in the United States, this can be politically very important, particularly for black Americans and formerly enslaved Americans who don't at this point have the same rights
to citizenship or the same rights to personhood. So it can be an incredibly charged political gesture for someone like Frederick Douglass to claim the copyright to his Narrative of the Life of Frederick Douglass, which is published in 1845, because he's not just saying that he is the owner of this work. He's saying that he's a US citizen. He's saying that he has personhood. And I make this point because, you know, copyright can sometimes seem like a kind of niche subject. You know, it's disingenuous.
to do with authors and it's to do with artists and really does it impact on our everyday lives. But my point is that the ideas that we have about copyright are so entangled with bigger political debates in the day. They're always pointing beyond itself. And so copyright history isn't this kind of sidebar
against history proper, it's deeply entangled with it. Yeah, I think the example you chose is very good. He came on a big tour of England, didn't he? He did. Especially the North. He didn't have copyright in Britain, so what's interesting is that Douglas talks very eloquently about the freedom that he feels in Britain, that he feels for the first time his
his personhood acknowledged. And yet when his narrative is reprinted in Britain, which it is, it's a big selling text and he was intimately involved in the publication of it, it doesn't have that copyright statement. And instead what's there instead is details about the white men in the anti-slavery organisation who were printing it. So it's one of these kind of ironies, I think, of copyright law that he can claim this personhood in the United States, but he can't in Britain where arguably it's more acknowledged.
There was some point where I was talking about a couple of points where I was talking about things and I hadn't quite finished and we moved on. And one of them, I think, was I was describing the origins of the 1862 Fine Art Copyright Act.
And I said how there were a number of reasons why painting started to become an issue for protection in that era. One was the destabilisation of the remuneration that was provided for engraving that emerged with photography.
The second was the international treaties. A third aspect was how paintings had now come to be seen as works of creativity in the same way as the works of authorship had come, writings in books had come to be seen as works of creativity. So Will had described how, or Will described how,
Wordsworth's ideas about romanticism, etc., had been brought within the copyright debates and they'd become part of the currency of copyright thinking in the early, mid-19th century.
And the same kind of thinking was applied to artists, that artists were equally as creative as authors, and so they should also get protection by the copyright statute. Okay, so she's a songwriter. What about you, Will? I think it's important to stress that from the beginning of this history, there is a kind of tension between...
between two different models of what copyright is or what it's supposed to be. One is that it's a right that belongs to authors based on their personality or based on their labor or based on their whatever you want to call it.
and that it's a kind of property right that belongs to them and it needs to be respected. And the other is that it is something that ultimately is about public utility and encouraging learning or encouraging creativity. And you see this tension from the 18th century onward, and almost every time copyright is litigated or a reform is proposed, there are people on both sides of this
of this divide. Lionel, and then I'll come to you, Will. What's been the relationship between copyright and other concepts such as piracy? Piracy is an interesting term in relation to copyright because it's used in very different ways in different contexts. In the legal context in the 19th century, piracy just means anything that infringes.
But in the political context, piracy often means something quite different. So piracy was applied to anybody who reprinted a work without authority, even if it was lawful to do so. So American works weren't protected often in the UK.
and the people who reprinted those were described as pirates. And British works, like the work of Dickens, were reprinted in the United States, and he had no hesitation in calling the reprinters pirates.
And then piracy also has a meaning which is much more common today, which is to refer to anybody who infringes copyright, but in a wholesale way, by duplicating text. So infringers who only infringe by taking parts wouldn't normally be called pirates today, but people who upload...
masses of works onto the internet would often be described as pirates. Do you want to take that up, Will? Yeah, one of the interesting things about the language of piracy is that you find it from the 17th century, even before the Statute of Anne. So you could actually argue that piracy pre-existed copyright, because piracy was a term that was used basically by printers and booksellers and authors to
to describe any kind of behavior that was a transgression of the shared norms of their community. So in the example that Lionel just gave of Americans who were reprinting British novels without permission, the British authors were claiming that the American publishers were pirates.
But within the American publishers, they set up a series of rules or informal norms among themselves. And, for example, the first person to advertise the book would have a right to print that book, a British book. Or the first person to print a novel by Dickens would have every subsequent future book by Dickens would belong to them.
And then if some other printer didn't follow that informal norm, the Americans who were being accused of being pirates by the British would accuse this person of being a pirate because they were violating the norms of their community. So the other thing that I think is interesting is that you go over time. Piracy is something that is an accusation that is leveled against the industry or the person who's reproducing the text to, as Lionel said, even an individual user.
And in the late 20th century, early 21st century, that's the most common use of piracy is to describe individual uses of the text by downloading or providing access that you're not supposed to have or using a text in a way that you're not supposed to have. And so there was a real kind of campaign against piracy. We have some exceptions within copyright now. In fact, we always did. I mean...
after the Statute of Anne, it was possible to use existing works in fair abridgements and fair quotation and that sort of thing. And then in 1911, these were codified into something called the Fair Dealing Exceptions.
which allowed for certain uses of works that were protected by copyright, but as long as the level of use was fair and they were limited kinds of uses. One was criticism or review. So you could take a passage from a work for purposes of criticism or review if you did so fairly and you acknowledged the authorship of the work. And that's the case today.
I was just going to say that one of the problems with fair dealing or fair use is that it has to be judged on a case-by-case basis. There aren't strict definitions for what does or doesn't constitute fair dealing as in the UK in a statute law.
So this means that even if you think you are on the right side of the law, if you think you're only just quoting enough to make your critical point, you still run the risk that you might be taken to court. And if you haven't got the funds to defend that court suit and you're against, say, a large corporation that does, you're putting yourself at great risk.
So I suppose the point that I'm trying to make is that even when copyright law allows for certain exceptions, there's this kind of notion of threat behind it, a kind of wielding of it that might shut down debate in some ways. Can I just go back to the point about the control that heirs or descendants might have over a work? This was something that's been thought about for a long time.
in one of the first main international literary property conferences in 1878, Victor Hugo gathered many of the same players that would later meet in Bern, and he gave an opening speech. And he said, "The writer has only one air. It is the human spirit. It is the public domain." Now, he said that after the author's death,
What should happen is anybody should be able to reprint or reuse the work because the author is dead. However, there should be some respect for the heirs in the payment of a royalty. But you shouldn't have to ask permission, but you should pay a royalty. That's sometimes called the paid public domain or compulsory license. Now, this really...
came back to haunt Victor Hugo's own great-great-grandson in 2001 when he sued to try to stop books that were sequels to Les Miserables.
And he said on the grounds of his great-grandfather's moral rights to the integrity of his work, others should not be able to take these same characters and imagine their afterlives in other stories. Well, the court actually was able to go back to this conference of 1878 and cite Hugo saying that he did not want even his own heirs controlling what happened to his work. He gave his works to the French nation.
I wanted to come back on relation to fair dealing and Katie's point. And she's absolutely right that fairness is, because it's so open textures, it's very difficult to predict fairness.
And the real problem is not really the judgment of authors as to whether their uses of pre-existing works are fair, but the judgment of their publishers. And most publishers will not allow you to use or claim the fair dealing exception. They will require you to get licenses for any use of more than absolutely de minimis material.
So the problem is less fair dealing than the way the publishers handle the fair dealing exceptions. Will, how did copyright change with the rise of press photography specifically? Well, here it's important to remember that initially it was very difficult to reproduce photographs in the press, in the newspaper press. The way to do it traditionally was to have an artist who would make a sketch of a person or an event or a building or something like that, and then this would be engraved.
And this led to the rise of an illustrated press, but it was a weekly press. And sometimes you would, when photography arrived, you would see an engraving based on a photograph, but you still had an engraver who was doing that. And so what really changed things was in the 1880s and 1890s, you have the introduction of a new technology for reproducing photographs.
called the halftone process. Basically, you have a sort of screen and you produce a series of dots which, viewed at a normal distance, creates the illusion of a continuous image. So if you look at these old late 19th or early 20th century newspapers, they're halftone images.
And at the same time, the rise of the portable camera enabled a sort of photojournalism that very much sped things up and enabled photographs to get into the hands of the press publishers rather quickly.
Well, this raised the question of who these images belong to. The photographers said it was not right for newspapers to be publishing photographs without their permission and without paying them and maybe giving them a credit line. The newspapers said, well, no, these are newsworthy people or newsworthy events. And so this is in the public interest to get this out there right away.
And basically, in both Britain and the United States, photographers created a union that they used to lobby for more respect for the copyright of photographs, even in the press. And they set up set rates for licensing their photographs to the press and requiring the press to issue a credit line and so on. And so it kind of is one of many examples where it's not just
a court decision and a statute that is creating a right. It's also a collective action on the part of artists or in this case, photographers to force the press to behave in a certain way. I just wanted to add something else about how the United States is always kind of out of step.
potentially with the rest of the world. And the other thing that the United States maintains past this kind of regularization and internationalization of copyright at the beginning of the 20th century is in printed works, it retains something that's called the manufacturing clause, which means that to get a copyright in the United States, an author from outside the United States has to have their work set in type or made into plates within the United States.
And what this means is that the US brings it in to kind of protect US printers. But the sort of unintended consequence of this is that some kind of really major works of literary modernism, James Joyce's Ulysses, Lady Chatterley's Lover, works like that, because they run the risk of obscenity laws in the United States, which are very strict at this time, they don't actually have a US copyright because they aren't quickly enough manufactured in the United States. So I think...
there are often kind of unintended consequences of these copyright provisions and that it means that some works circulate in rather strange ways because of them. Well, in relation to what Katie was saying, some of the background there is important background that is that the United States didn't join the Berne Convention when it was agreed in 1886 and it stayed out of it until the 1980s. So it went its own way in terms of international copyrights.
And that's how it was able to have this manufacturing clause. No other countries could because the Berne Convention required recognition of copyright without formality. And this was regarded as a formality that was, it would have been in contravention of the Berne Convention.
But this manufacturing clause also reminds us that one of the purposes of copyright initially was to encourage not just learning, but also the printing trades. And arguments in favor of reprinting, the free reprinting across borders, has always included if you respect international copyright, then you're paying copyright to a foreign author and a foreign publisher, right?
And you're raising the price of books for your own readers, and you're limiting what your own manufacturing can do. So you see, there is a logic to this. There is a political argument behind it. And in Ireland in the 18th century, they used this argument that they should be able to reprint British books.
without paying for copyright, because that would encourage the printing trade in Dublin and that would encourage access for Irish readers. In America, they were making the same argument well into the early 20th century that if we fully went along with Byrne, then we would not have a flourishing printing industry. So these kinds of arguments are quite powerful.
Yeah, and in the colonial context, the imperial context, Canada's problem was it wasn't able to develop a printing industry because US reprints were allowed to go into Canada, whereas Canadian publishers were bound by British law, so would have had to pay British licence fees. And that put them in an incredibly difficult situation, and that's why they...
were also causing some difficulties in reaching consensus on copyright at the end of the 19th century. Well, thank you all very much. Good.
You'll be offered a cup of tea, so don't rush away. Melvin, what would you like? I'll have a cup of tea, please. Coffee would be lovely, thank you. Something without caffeine for me. Do you have herbal tea or just water? In Our Time with Melvin Bragg was produced by Eliane Glazer and it is a BBC Studios audio production for Radio 4. From BBC Radio 4 and The History Podcast.
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