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Should artists know better? - the British copyright experience

About the author
Rosemary Bechler is main site Editor of openDemocracy.
Got myself a cryin', talkin', sleepin', walkin', livin' doll
Got to do my best to please her just cos she's a livin' doll
Got a rovin' eye and that is why she satisfies my soul
Got the one and only walkin', talkin', livin' doll
– Cliff Richard's Livin'Doll topped the UK charts in the 1950s and again in the 1980s
"I don't think Macca is a genius – Mozart was a genius. What he is, is one of the greatest composers of popular song of the 20th century, who wrote the glorious soundtrack to my, and millions of others, lives. I'm just sad on a personal level for him and his young child. Perhaps he married too quickly after Linda. I hope he finds happiness eventually. I suppose, after all – money 'can't buy you love'."
– Paul McCartney fan-mail from Slovenia


* * *


What is an author? For science fiction writer and Creative Commons proponent Cory Doctorow, an author may be described as part of something bigger than himself:

"Some other writers have decided that their readers are thieves and pirates, and they devote countless hours to systematically alienating their customers. These writers will go broke. Not me – I love you people. Copy the hell out of this thing."

In Brazil too, Minister of Culture Gilberto Gil presides over a commitment to Creative Commons described as a "tool for intellectual generosity", empowering creators and artists, if they so wish, to license their creations so that society as a whole is entitled to exercise some rights over their work.

In April this year, Cliff Richard hit the headlines with his campaign to extend the number of years in which British performers can expect to receive royalties for their recordings. Under current UK law, songwriters obtain royalties for their work for their lifetime plus seventy years, whereas performers can only expect payment for fifty years.

In the US, copyright was extended from fifty years to ninety-five years in 1998. According to Sir Cliff, unless this latest push to harmonise the copyright term upwards is successful, "The fact is … artists will not be able to afford to make an album." There is a strong sense here of what the culture owes to Cliff Richard, but no detectable sense of what he may owe to that culture. His creativity appears ex nihilo, and as such requires its due reward.

genuisSpot the genius: Mozart, Einstein, Paul McCartney and, Cliff Richard

The following month, Sir Paul McCartney's divorce lawyer, Alan Kaufman, predicted that Sir Paul's "widely acknowledged creative genius" would form the crux of any further legal argument in his forthcoming divorce settlement. Mr Kaufman described Sir Paul as having, "a very special position and his lawyers will be arguing very, very strongly he should be treated differently from most other husbands because here we have a man who incredibly has built up massive wealth because frankly he is a genius". Asked, "so what is 'genius'?", Kaufman replied, "It's always going to be a big argument. When you see it, you know it."

The fierce debates about intellectual property that occur today revolve around a notion of the author as creator of a unique property which he owns by virtue of a singular imaginative act, somehow cut off from precursors, interlocutors, and intended or unintended recipients. The subject of copyright is essentially a crude caricature of a Romantic poet. Why is this the case? How has such a figure managed to maintain such a grip on the legislation?

Rewind to 1709. A period (rather earlier than that of the Romantic poets) which saw the Statute of Anne, the beginnings of a national culture, and what Jurgen Habermas calls the "public sphere".

This article is part of a debate exploring global digital commons and culture. For more information on the commons movement, see the iCommons website.

Join the debate in the openDemocracy forums: "Do you remix?"

A public is born

The earliest British copyright laws, beginning with the statute decreed by government under the Catholic Queen Mary Tudor in 1557, were instruments of censorship. They granted the Stationer's Company, a guild of printers, a monopoly in legally produced books approved by the Crown. This legislation doffed its hat to the authors, but was in essence a compact between a government anxious to suppress dissent and a guild determined to retain control of the book trade.

Despite constant lobbying by the Stationer's Company to keep their monopoly powers intact, the old Licensing Act expired in 1694. The Stationer's Company now found itself up against a formidable set of new opponents, a Whig oligarchy intent on erasing the special privileges and monopolies conferred by the crown, most of which had been abolished after the Glorious Revolution.

If London was to be a new centre of civilisation, the anti-monopolists argued, an open government, a free press and active debate must ensure an unprecedented exchange of ideas. Artists and thinkers who had to submit to such a public tribunal would produce better works of art and ideas. Moreover, a book was not a thing, but 'an Assemblage of Ideas' which might be patented for a number of years like a mechanical invention, but could not be held permanently.

The focus of attention was again an attempt at balance – this time the interests of a burgeoning bookprinting industry with these anti-monopoly concerns. The 1709 Copyright Act was entitled, 'An Act for the Encouragement of Learning.' As an incentive to produce new works, it granted the author protection for fourteen years, and 'the classics' for a non-renewable twenty-one-year term. These time limits created the first legal notion of a 'public domain' – a collection of works old enough to be considered outside the scope of the law, and under the control of the public and culture at large.

john vanbrughJohn Vanbrugh, painted by Godfrey Kneller
John Vanburgh, architect, dramatist and member of the Kit-Kat club, a powerful early 18th century group which set out to shape the arts through an elaborate web of influence and patronage, and create a newly refined and polite public.

The London booksellers were undeterred by the Statute of Anne. For the next sixty-five years they simply claimed that the author or his assignee had a perpetual copyright under common law. Those who violated it were threatened with suits in the court of Chancery. They used various other restrictive practises to shore up their control, but they also turned to the authors. Their most powerful ally was the great neo-classical poet, essayist, dictionary-compiler and critic, Dr.Johnson.

Samuel Johnson – whose career could not have contrasted more strongly with that of a Romantic poet – came to London in 1737. A year later he wrote London: a Poem, in Imitation of the Third Satire of Juvenal and soon established himself as one of the leading literary figures of his time. In 1747 he published his Plan for the great Dictionary of the English Language. The Dictionary, which was to standardise and fix the best and most refined usage, pursued the practise of Greek and Latin lexicography by appending illustrative quotations drawn from a list of nine poets and twenty prose authors deemed by Alexander Pope and William Warburton to be authoritative.

Johnson was steeped in an idiom which more than any other, knew what it was to "stand on the shoulders of Giants", and required that the reader knew this too. Before the digital age, it is hard to think of a culture more dependant on copying, for author, critic and reader alike. To be a deemed a gentleman or gentlewoman was the end, and emulation was the means.

Between Restoration and Romanticism: a new "British heritage"

At a time when direct patronage was being replaced by book-subscriptions and the making and breaking of literary reputations, it was vital for Johnson and his literary allies to appear amongst the foremost improvers in the moral improvement of the times. But still they struggled to overcome the prejudice against the squalid practise of writing for a living, and still they struggled to make a living.

Concepts such as "natural genius", or the spontaneous stroke of invention totally beyond the reach of deliberate intention, method or rule, were profoundly uncongenial to the mainstream neo-classic view of art as a deliberate craft of ordering means to ends. But they were less antipathetic to a rising new audience of sentimental readers, including women, unversed in the classics, who were to bring about an important shift in taste.

In what some regarded as a fatal "dumbing down" of high culture, polite society was coming under attack from readers who were more ready to look within for sensibility and direct, empathetic feeling. Rustic simplicity, paving the way to the nature poetry of the Romantics, was counterposed to urban luxury and pretense. Against this background, Samuel Johnson and his literary allies now began to argue that what distinguished the true author was not the economic conditions in which he found himself, but the individual ingenuity and originality that the work displayed.

To counteract the view that literary composition was a form of concept "assembly" which could be put together by paid hacks, they emphasised the importance of the author's unique "style and sentiment". Literary criticism turned its attention from assessing a work's conformity to a set of conventions and rules, to showing how each author shaped a particular work.

Samuel Johnson led the way, arguing that a good author had a "stronger right of property than that of occupancy; a metaphysical right, a right as it were, of creation" – and followed this up with his great works of literary biography in the 1770s and 1780s, the Lives of the Poets. "Authors" from Shakespeare to Samuel Richardson were now pronounced to be original geniuses and children of nature.

Enter the booksellers. Nothing could be more convenient to those who wanted the right to sell a work or to sell the right in perpetuity, than this emergence of the author as the creator of a unique property which he owned by virtue of a singular imaginative act. Literary arguments around originality of style and sentiment and creative genius reinforced the commercial claim for ownership. Such a property right, the booksellers argued, was perpetual. An author could sell it of course, and booksellers trade in it, but it could never be alienated from its source.

But now the stage was set for a mighty partnership between authors and rights-holders which would make Johnson's Literary Club the most influential for the rest of the century, affording numerous opportunities for mutual profit and advantage for as long as they could keep the "pirates" at bay. Together, they set about promoting a select pantheon of literary deities as a national heritage which they hoped would remain firmly in the booksellers' control.

Literature, not for the last time in British history, in a sense, stood in for the rest of culture as pop music or football might today, and Johnson stood in for literature. But as we learn from Willliam St Clair's provocative outline of 'the History of the Book' in the John Coffin Memorial Lecture for 2005, they actually produced a smaller number of books at higher prices as the century progressed.

clarissa, adam smithClarissa, Richardson's gothic heroine, and Adam Smith, author of Wealth of Nations

In 1774, however, perpetual copyright in England was finally declared invalid by the House of Lords. For a period, England now enjoyed the same "mixed system" of copyright confined to one generation which had prevailed in Scotland and Ireland since 1714. By the last quarter of the century Irish and Scottish booksellers, supported by provincial retailers, were sufficiently strong enough to undercut the London bookseller prices and open up the trade.

Political economists led by Adam Smith, who were the beneficiaries of the Scottish "mixed system", successfully argued that perpetual copyright conflicted with a new public interest in the free circulation of knowledge, and information. Property acquired value not because it was a "thing" that was owned, but through its circulation and exchange in a system of commerce: not only the circulation of capital but also the circulating library. St Clair emphasises the scale and immediacy of the change in 1774:

"prices tumbled, production soared, and access widened… Defoe's Robinson Crusoe … sold more copies than it had in seventy years after it first appeared. More copies of Shakespeare were sold within twenty five years of 1774 than in the 150 years after the first collected edition…"

Britain's national heritage now spread itself far beyond the confines of the elite public who could afford access throughout most of the 18th century, taking along with it the seemingly unstoppable notion of British natural genius. This wider availability coincided with "the flourishing of the Scottish Enlightenment", and that other "read-write" cultural phenomenon, "the British Romantics".

The return of culture

book stallLondon booksellers

Musing on the absolutist terminology of "property", "theft" and "the author as unique creator" which dominates intellectual property debates today – St Clair remarks trenchantly: "No one, whether author or intellectual property owner, can reasonably claim that any substantial text has been compiled solely from privately owned materials."

To which we must add the rejoinder – least of all Samuel Johnson. There can be few men so centrally involved in a project far larger than themselves, so memorialised by lifetime of conversation – so dependent on the Ancients, on his fellow poets and critics, on a new industry, on the construction of a reading public, and the growing of a national culture.

It seems a peculiar fate – that such a clubbable man, such a Londoner when London was the world city, should have been willing to disguise the project as an act of solitary self-expression. Yet we can easily see how the temptations of monopoly, whether in terms of power or profit, literary reputation or the financial independence that followed, were impossible to resist.

On the one hand, the ownership claim conferred status and wealth, and on the other, it rendered opaque the mechanics of commerce and social control. In the name of "quality", it kept the reader (ostensibly the target of the whole endeavour) hostage to a "star system" which has lasted until the present day. And all this despite the fact that in the commercially produced mass popular culture of the 20th century, brand new forms of exclusion such as the barriers of production costs and production values have long since overtaken, if not entirely replaced, the iconic role of the work of art.

This is not to diminish the extensive achievements of Johnson's life-work. It must be possible to demystify this "genius" without detracting from it. Yet to begin this process is to confront the paradox of his position. Johnson is never more innovative and inspired than when he is attentive to the constituency he was the first to name, "the common reader".

johnsonThe great man of letters: Samuel Johnson painted by Joshua Reynolds

Yet the sureness with which he located this heartbeat in the body politic owed nothing to lone genius and everything to inspired eighteenth century networking. And when he allowed himself to make his Faustian pact with the booksellers, it was this same "common touch" in all its diversity and creative potential, on which he also turned his back.

This was not the last time that a great man has allowed himself to be mystified by his own genius. In less than a century, the same syndrome was again at work amongst the Romantics. The Copyright Act of 1842 was instigated by William Wordsworth, and supported by Thomas Carlyle and the young Charles Dickens amongst others.

Wordsworth would certainly not have wished to recognise Johnson as an antecedent, and yet, here was the poet, who more than any other of his time - as he wrote in the revolutionary 1805 preface to the Lyrical Ballads - inherited Johnson's mantle and found his inspiration in the "incidents and situations from common life". His poetry was an intimate transaction formed by a "man speaking to men". History had already moved on from the blissful dawn of the French Revolution when he wrote these words, and Wordsworth's political stance would change further. But even this does not fully explain the perversity of the 1842 commitment to copyright.

Of the writers of their age, Wordsworth, Carlyle and Dickens were the most alert to the threat of commodification and the power of money to usurp, most committed to an artistry that can refresh perception and so keep open the possibilities of authentic exchange between human beings. Yet they too were willing in the end to bind their fates to the publishers' interest in the Romantic "star-system". And like Johnson, to a great extent they have been bequeathed to us detached from the explosion of cultural creativity in which they played a central role, in a stream of commodified authors and works.

But there are small signs that the star-system may now be about to unravel. John Brewer, in his introduction to The Pleasures of the Imagination: English Culture in the Eighteenth Century (1997), wrote the following explanation of his task:

"I am examining writing, bookselling, publishing and reading rather than the genius of Johnson; exhibiting societies, academies, art dealers and collecting rather than the brilliance of Reynolds; and censorship, subsidies, theatres, audiences and actors rather than the talents of Garrick …. I am concerned less with the critical reputation conferred on them by posterity than with their part in creating the culture of their day."
wordsworthA brooding Wordsworth, painted by Benjamin Robert Haydon

More recently, in his remarkable overview of the entire "print era" from 1400 to 1900, The Reading Nation in the Romantic Period, William St Clair has called for a political economy of reading. In an article in the Times Literary Supplement this May, he bemoans the fact that both literary and intellectual history, two of the disciplines that have traditionally attempted to trace the impact of culture on society, have been written in accordance with what he calls the "parade of authors" convention,

"The writings of the past are presented as a march past of great names, described from a commentator's box set high above the column … According to the parade convention, those texts which have later been judged to be the best of their age, or the most innovative in a wide sense, are believed to catch the essence, or some of the essence of the historical situation from which they came. It is a convention centred on newly written works that, for the most part, denies an active role to readers."

Instead, he suggests that in the digital age, it would be a fairly simple task, "with modern technology and many hands contributing, worldwide" to place alongside the plentiful information we have about texts, such information as survives about production, prices, access and actual readerships over time – readerly access, readerly expectation, choice of reading, reception and what we know about the impact on past cultures.

The project, he thinks, would fit well with other projects presently under way, such as putting texts online or collecting examples of historic reading. He concludes that "If we wish to improve our understanding of why, as societies, we have come to think the way we do, and to give ourselves, if we choose, a greater degree of freedom, we need a political economy of reading."

It seems appropriate that the opening up of the cultural commons in the digital age should help us return those eager readers of the past to their cultures in the broadest sense, at the beginning of the modern era of copyright. Perhaps in exchange, their experience can liberate us, today's "end-users" at the beginning of the global read-write internet era, from whatever remains of the mystifying power of genius.

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