Would The Revolution Have Survived Copyright?

February 21st, 2011

A NYT Op-Ed Response to “Would the Bard have Survived the Web?” By Scott Turow, Paul Aiken, et al. for the Authors Guild.

Thanks to Fordham Law School and the Fordham IP Institute (especially Mary Rasenberger & Sandra Sherman) for inviting me to campus to debate Paul Aiken (Executive Director of the Author’s Guild) on February 28, 2011.

Scott Turow, Paul Aiken, and other members of the  Author’s Guild recently asked the New York Times whether William Shakespeare would have survived an Internet age without copyright.  Suggesting the Globe Theater was a premodern form of copyright, a physical “pay wall” that required audiences to compensate the play’s author, Turow claims it was the advent and collapse of this primitive pre-copyright regime that produced the “greatest explosion of playwriting talent the world has seen.” His point: copyright means literary entrepreneurship. More “pay wall” equals more literature.

Is this argument historically true?

Turow is right in claiming the world’s first copyright act was ostensibly for “the encouragement of learned men to compose books.” But that characterization elides the fact that the 1709 Statute of Anne was conceived and pushed through Parliament by and for booksellers, not writers. The protection of booksellers by the 1709 law accelerated the growth of printed material in early modern England. But it did not result in a great age of authorship. On the contrary, the fifty-year period after the 1709 Statute of Anne is best known in the history of English authorship for its depressing tales of Grub Street. William Hogarth’s 1736 “The Distrest Poet” is just one of the iconic illustrations of the harsh conditions suffered by newly “protected” writers.

The story of copyright in America is even less cheerful. America’s first copyright law, the Federal Copyright Act of 1790, was similarly promoted as a way to encourage intellectual and artistic greatness. It modestly protected the works of writers for 14 years, renewable for another 14 years if the copyright holder was still alive.

But history demonstrates that the first “pay wall” in America had an adverse effect on authorship. With no international copyright agreement in place (the first wouldn’t appear until a century later), America’s copyright law actually undercut American authors twice. First, it cut them out of the profits of their biggest market: readers in Europe. This was because European publishers could (and did) reprint American books royalty-free. On top of that, American writers were at a competitive disadvantage at home, since American publishers found it cheaper to reprint foreign writers (which were freely pirated) than to publish domestic writers and be forced to pay royalties. The global piracy game was so profitable that smart printers on both sides of the Atlantic had agents competitively buying up and rushing new books overseas so that their publishers could be the first with them to market. It was an established enterprise not all that different than today’s DVD bootlegging “industry” in Asia.

If the birth of copyright in America did not put money in the pockets of American writers, did it produce what Turow et. al. champion as the higher aim of copyright: an explosion of creative talent?

The answer is no. Literary historians will tell you that the period following the birth of American copyright, like the period following the 1709 Statute of Anne in England, was an unusually barren time in American letters. Yes there was an explosion of mostly “royalty-free” printed material, something carefully documented by book scholars like Richard D. Brown. But authors that found a way to rise out of the crowd were rare in the half century that followed America’s adoption of copyright. Two of the writers that make any 1790 to 1840 American literature syllabus (what passes for the canon of greatness these days) were Washington Irving and James Fennimore Cooper. But both are interesting cases as their careers relate to copyright, since both writers went to great effort to have their works appear simultaneously in England and America, in effect capturing and controlling both pay walls.

Did copyright law enable Irving and Cooper to accumulate wealth? Yes, although more in the fashion that hedge fund managers travel to Grand Cayman to protect their assets than potential Shakespeare’s passively receiving their due. As for authorial respect for other people’s property, it helps to remember that Washington Irving’s literary reputation, then and now, rested on his piracy of German fairy tale authors Wilhelm and Jacob Grimm–neither of whom received royalties from either Irving or America.

It wasn’t until the 1850s–sixty years removed from America’s first copyright act of 1790 and thirty years before the first international copyright agreement in 1881–that America saw a genuine explosion of authorial talent. This was the period canonized by critic F.O. Mathieson as the great American Renaissance: the age of Emerson, Thoreau, Melville, Whitman, and Hawthorne.

So does copyright enforcement have any relationship to great writing?

The answer is probably yes. But not in the causal way suggested by Turow and many other smart people who have taken up the copyright question since 1709.

Most reasonable people would agree that the greatest explosion of authorial talent America has seen took place during the 1770s and 1780s: The period known as the American Enlightenment. This was the historical moment that produced Declarations, Constitutions, and Bills of Rights. This was the explosion of talent that included the Franklins, the Washingtons, and the Adams.

This maelstrom of literary and artistic activity arrived more than 50 years after the birth of copyright in England and ended the year prior to the birth of American copyright. So a causal case for copyright is difficult to make. Indeed, since the Statute of Anne was not enforced in the colonies, one would have to argue that, if there was any effect of copyright law, it existed in its violation.

There is more to this counterintuitive argument than one might think. Political writer Thomas Paine’s pirated books from England were, as a consequence of the near frictionless market of reprinting, found in virtually town up and down the American seaboard. The same goes for pirated work from French philosophers, English naturalists, and Scottish economists. As a consequence, colonial readers were familiar with Paine’s vernacular and the ideas of the Enlightenment when they began hearing the same reasoning from, first their revolutionaries, then their founding fathers. This lawless, frictionless, “pay wall” free world produced a creative intellectual eruption so profound and expansive that it mobilized a sprawling continent to revolt successfully against the most powerful empire in the world and laid the textual groundwork for an entirely new civilization.

Maybe Shakespeare had the copyright “pay wall” in mind when he dreamed of “killing all the lawyers” in his writer’s utopia. After all, he may have benefited from the business of the Globe Theater, but copyright law never once compensated him.

If copyright has any direct causal relationship with Shakespeare the writer, it relates to the 200-year old case against his authorship, begun by a jealous Ralph Waldo Emerson who claimed he could not reconcile Shakespeare’s verse with the image of a theater manager.

Shakespeare scholars pay dearly for the books debating the merits of both plaintiffs and defendant. You can review the case file on Wikipedia and follow the conversation on Facebook for free!

Grantland S. Rice is the author of THE TRANSFORMATION OF AUTHORSHIP IN AMERICA (Chicago: University of Chicago Press, 1997). He taught a yearly course on authorship & copyright while an administrator at Harvard Law School.

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