Digital Britain and the return of the Stationer’s Company

Last week marked the 300th anniversary of the Statute of Anne, the first true modern copyright law in the West, which was passed by the British Parliament in 1710. It established a copyright term of 14 years and, for the first time, brought the author on stage as the party in whom the right was vested, rather than the bookseller/printer who had dominated the trade both legally and commercially since Gutenberg's time. The statute also made the term renewable for another 14 years if the author were still alive at the expiration of the initial period.

Last week also occasioned the passage in England of the Digital Economy Bill, which, for the first time, made ISPs legally liable for the actions of their subscribers and imposed on them an affirmative obligation to protect copyrights to which they are not party. The timing of the passage was surely a coincidence. It's unlikely many in Parliament were aware of date's significance.  But it presented a striking juxtaposition nonetheless.

Prior to 1710, the book and printing trade in Britain (they were one in the same) was controlled by the Stationer's Company of London, a royally chartered corporation with the power to enforce crown-sanctioned publishing monopolies (also called patents), regulate the import of books and see to it that no "seditious" or otherwise "objectionable" books or pamphlets were printed within the kingdom.

Since 1662, the Stationer's had operated under the Licensing Act, which made it a crime to print any book in Britain without a license (the history of the Stationer's Company actually goes back much farther, and is fascinating but beyond the scope of this blog post). To be licensed, a printer had to be a member in good standing of the stationer's guild and submit to the authority of the Stationer's Company.

The purpose of the 1662 Act was to regulate the potentially dangerous technology of printing, not to protect anything we would recognize today as authorial rights or intellectual property. Once an author had sold his "copy" (i.e. manuscript) to a printer, under the Stationer's Company system, he had no further legal or contractual claim on the proceeds. It was fundamentally a system of censorship and control, but one that was highly lucrative for the printers.

By 1693, the Licensing Act was set to expire. Anxious to maintain their monopolies, printers agitated for an extension. They got one, but only until 1695, when the debate began again.

By then, however, the politics of publishing had changed. Influenced by the writings of John Locke and Daniel Defoe, among others, the legal foundations  of monopolies and censorship got swept up in partisan debates that erupted in the years following the Glorious Revolution. So, too, did traditions like the operation of the Stationer's Company that smacked of royal privilege.

The text and structure of the Statute of Anne reflect that ferment. In particular, the introduction of the author as a legal and economic actor in his own right was seen as a way to resolve many of the tensions over licensing and monopoly.

In his Essay on the Regulation of the Press, Defoe argued that investing authors with proprietary rights would resolve the problem of writers issuing objectionable works anonymously without a license by inducing them to take ownership of their work by putting their name to it. Should a published work be deemed objectionable, the author could be sanctioned after the fact. Thus, the licensing system would become unnecessary.

For if an Author has not the right of a Book, after he has made it, and the benefit be not his own, and the Law will not protect him in that Benefit, 'twould be very hard the Law should pretend to punish him for it.

'Twould be unaccountably severe, to make a Man answerable for the Miscarriages of a thing which he shall not reap the benefit of if well perfom'd.

Similarly, authorial rights were seen as a useful mechanism for breaking the hold not only of individual printers' monopolies but of the Stationer's Company's grip on the book trade generally. As the copyright historian Lyman Patterson wrote in Copyright in Historical Perspective:

The monopolies at which the statute was aimed were too long established to be attacked without some basis for change. The most logical and natural basis for the changes was the author. Although the author had never held copyright, his interest was always promoted by the stationers as a means to their end. Their arguments had been, essentially, that without order in the trade provided by copyright, publishers would not publish books, and therefore would not pay authors for their manuscripts. The draftsmen of the Statute of Anne put these arguments to use, and the author was used primarily as a weapon against monopoly.

The maximum 28-year term of protection in the law served to emphasize the point.

Though the framers of the Statute of Anne may have had limited aims, there was nothing limited about what they accomplished. In addition to making owners of authors, the law transformed copyright from what was essentially a legal and regulatory system to a system based on market incentives, laying the foundation of the Anglo-American system of copyright for the next three centuries.

Three hundred years later, almost to the day, we have the spectacle of the British Parliament again wrestling with a nettlesome new communication technology. Only this time it's the technology itself that threatens to obliterate publishing monopolies and the "reformers" that seek to reassert them.

As happened then, a new actor has been called on stage to try to resolve the tension, in this case the Internet service provider. Rather than investing the ISP the new actor with proprietary rights, as the enlightenment thinkers of the 17th Century proposed, the Digital Economy Bill imposes on ISPs new obligations.

Under the new law, copyright owners can send ISPs "copyright infringement reports," identify instances of alleged infringement. ISPs are obligated to pass the notice on to the subscriber identified by IP address. If requested, ISPs are also required to provide copyright owners with a "copyright infringement list," identifying all instances of infringement by a user.

The law also compels Ofcom, the U.K.'s communications regulatory authority, to report every three and 12 months on the level of copyright infringement occurring online. The government then has the power to order Ofcom to require ISPs to implement technical measures to address infringement, ranging from throttling and bandwidth shaping to blocking specific sites and suspending users' accounts.

If an ISP fails to implement the required technical measures it can be fined by the government.

In fairness, the law is not likely to be as Draconian as that summary makes it sound. There are many conditions that must be met before the most severe penalties can be imposed, and any penalties that do result must square with European Union directives that are more protective of online privacy. But it's a striking departure nonetheless from the legacy of the Statute of Anne.

In place of market incentives, the Digital Economy Bill, along with its French counterpart, HADOPI, and the growing chorus in the U.S. for imposing greater liability on ISPs, relies on sanctions, and points copyright law back toward a system of regulation, if not quite official licensing.

Again in fairness, digital technology is different from the technology of the printing press, and may indeed require a different kind of response. But before we throw the baby out with the bath water, it's worth remembering how well the system of market incentives set up 300 years ago has served the public interest up to now.