Copyright — The little story of copyright
Copyright is omnipresent in our life. Everything we see, listen or read involve the creation, diffusion, reproduction and management of intellectual property. Every step involve different actors and different rights that must be legally observed in order for us to consume these works. In order to understand this current state of affair we must first understand where it is coming from and how every decision made along the way relate to their historical perspective.
Our little history will take us back to Gutenberg, and the revolution he introduced in the diffusion of written works, to Edison and the drastic change his phonograph introduced, to the present day where works can be consumed on demand without even reproducing them physically.
Up to the 18th century: the intellectual revolution
Our story of copyright starts during the 15th century with the invention of the printing press by Gutenberg (1440). Before that point reproduction of books were manuscript done by experts. A great amount of knowledge, time and money was necessary to produce every single copy. Thus texts were not broadly available, they only ended up in the hand of the powerful and wealthy.
The printing press revolutionized all that. Now the works could be reproduced in huge quantities in a small amount of time, capital and labour. This brought a drastic social change leading to the broad circulation of ideas. People now had good reasons to learn to read and write, hence broadening even more the audience for printed and distributed texts.
This large new audience lead to the creation of new commercial activities to fulfill the demand: printing, publishing and distribution of copies of book for sale. This general intellectual growth lead to a boom in the innovative spirit of the time. For example during this period Columbus went on expedition to find the new world and Copernicus revolutionized our understanding of our place in the universe.
Birth of copyright
This explosion in printing and distribution of texts lead to the need for a better regulation on who had the right to make copies of works and what kind of texts were allowed for public consumption (censorship). In England, the Stationer’s Company was given total monopoly on these “copy right” (yes, with a space) by a Royal Charter in 1557.
The Company publishers were from now on the only entities legally allowed to copy texts. In order to be printed and published every texts had to be registered into the Company’s books. The first publisher to do so would get the exclusive right to print and make copies for sale. They also controlled the censorship of works but destroying illegal texts deemed not suitable for the public and imprison anyone manufacturing them.
Note that this was not “copyright” as we know it. The right to copy was given to publishers not authors and this right did not exist by default. When a member of the company registered a book it had a perpetual right over its printing, copying and publication. This right could be sold or passed to heirs after the member’s death. Authors were not respected and were left aside from all the economy generated by their works. They had not right to belong to the Company.
As you can imagine this system based on monopoly, censorship and disrespect of authors was widely unpopular. In 1695, due to pressure from the population and the authors, the House of Commons refuse to renew the Licensing Act (base of this “copy right” system) leading to a reduction of the monopoly of the Stationer’s Company. The Company then petitioned for a new censorship legislation which failed. They then argued that the right of ownership should inherently belong to the authors. Don’t worry, they didn’t suddenly found a deep interest in the well being of authors… They just knew that there was very little authors could do with these rights other than give them away to publishers.
This argument, which was actually well thought, persuaded the Parliament to enact in 1710 the first Copyright Act (also called the Statute of Anne) effectively removing any sort of monopoly, granting authors freedom of speech, the rights on their work and a copyright term of 14 years renewable once. It was the first time in history that copyright was regulated by government rather by a private party.
The 17th and 18th centuries brought a vague of intellectual and artistic works. Some of the greatest artists the world has known (Da Vinci, Michaelangelo, Shakespeare, Hobbes, Moliere, Voltaire, Bach, Mozart) either lived in poverty or had to work their whole life under the patronage of rich sponsors or by selling their work / knowledge to sustain their creative endeavour.
Copyrights were acknowledged since the early 18th century and it allowed authors to gain social recognition of the value of their work and a greater freedom of speech but they still didn’t have a strong copyright protection nor legal framework to get a fair compensation out of their works.
Publishers, printers (books) and producers (plays) used to receive most of the monetary advantages by owning the commercial usage of the works. Most would sell their rights to publishers once and never get anything more out of their work during their lifetime. Near the end of century it shifted to the authors who by gaining the right to own the commercial usage and do as they pleased with it started to gain real compensation for their efforts.
For example, in 1777, a group of famous theatre writers lead by Beaumarchais went on a writing strike to protest against the unfair flat fee paid by theaters to use their works. The negotiations lead to a better economic compensation for the authors (percentage based royalty).
Meanwhile… in the new world
In 1790, the U.S. passed the first federal Copyright Act (though most of the states had already passed some legislation to secure copyrights). Most of it borrowed from the english Statute of Anne. Its goal was to protect intellectual work in order to “encourage learning” and creation of useful inventions. It gave the authors 14 years renouvelable once of “sole right and liberty of printing, […] publishing” of their “books, maps and charts” (note that there is nothing about paintings, drawing, etc).
But there was a fundamental difference between the U.S. and European viewpoints. In Europe authors were the original genius of creation to whom the property rights belongs. While in the U.S. it is a statutory privilege (instead of recognizing creators’ rights). The European system was centered around creators (with the underlying belief that the artistic work is an extension of the artist) and the indestructible link they have with their works. Meanwhile the U.S. system belief is on protecting the work itself by regulating its commercial exploitation. This difference of underlying belief will lead to some divergence between Europe and the U.S. later in history when authors’ moral rights will enter the scene as we will see shortly.
19th century: industrial and social changes
We saw the 17th and 18th centuries bring drastic changes in the social and political landscape of the world thanks to technological innovations, means of production and distribution of intellectual works. Well not to be outdone the 19th centuries also brought its part of social revolutions, this time more focused on international interconnections.
The Age of Enlightenment of the preceding century developed the idea of progress and improvement of the human race. It called for a modernisation of the economy and society to remove the impediments to the development of a free global market and free circulation of people.
This new cultural environment focused on progress brought the industrial revolution and the drastic changes in the global economy and social climate. Development of new technologies (steam engine, machine tool, factory system, telegraphy, light bulb, …) catalyzed the creation of new and more productive mean of production (including production of works protected by copyright), transportation, construction, manufacturing and communication.
Political entities started to base themselves of the gold standard with the goal to unify the world economy, facilitate international trades and prevent the long and still widespread wars. This focus on the expansion of the international system brought an increase in the circulation of goods between countries. But whereas physical goods can still have restrictions to move across frontiers, intellectual works have none and can reach any country without any obstacle. Their broad circulation depended uniquely on the independant states legal system and institution to make it work. This broad and free circulation lead to a bigger market and therefore to a potential greater value of intellectual work. But at the same time the copyright and economic compensation system were non existent on the international level. Keeping intellectual ownership rights in check when works reached out of the authors’ origin country were impossible.
Industrialization and internationalisation had an enormous impact on ideas and culture. Labour became a commodity, a mean of production, where labour could be exchanged for a salary. The remuneration conditions of an industrious employee became clearly different to the free and autonomous authors of artistic works.
In the U.S., Thomas Jefferson signed the first patent statute passed by the federal government: the Patent Act of 1790. It’s goal is to reward intellectual efforts under the condition of a delivery of progress for the benefice of individuals. It states that a patent can be granted only if it gives evidences of novelty, that it can be produced industrially and that it contributes to the progress of the art. Then an exclusive gain privilege is granted to the author.
As an example Edison had many patents. He invented many new technologies which lead to the creation of entire new industries. These technological invention where, like artistic creation, protected under law thanks to the Patent Act.
Similar protective ideas spawned up across the globe. Legal protection was clearly understood as a tool to promote innovation, progress and international commerce. It was broadly adopted and opened a path to internationalization.
Because of this gigantic market increase, in order to guarantee economic compensation for their work authors needed harmonized international principles and norms that recognized their rights. They also needed tools and technologies to track, control and monitor the usage of their works. And this time not only in their origin country but in every country where their work could reach the public. This problem is at the origin of the creation of national organizations to manage the rights of authors like SACD (1829) and SACEM (1850) in France or SIAE (1882) in Italy. This kind of organization, nowadays called PRO (Performance Rights Organization), became a model to be followed by every other country in the world.
Origins of collective management organizations
As seen previously it began in France in the 18th century. In 1777 Beaumarchais annoyed by the under-remunerated use of his work, especially following the very small compensation received for the public representation of his play “le Barbier de Seville”, called together 20 others authors to go on strike and stop writing new plays. Forced to negotiate plays producers and theaters owners accepted to go from a one time fee to a royalty based economic compensation. In 1791, Beaumarchais submitted a petition to the government to protect against “the usurpation of authors’ property by theaters directors”. Authors won and Louis XVI ratified the world first law recognizing the authors’ sovereignty on their works. In 1829, SACD (Society of Dramatic Authors and Composers) was founded combining two earlier organization created in 1791 and 1798.
As with the SACD, SACEM was born out of frustration. As seen earlier in 1847, the french playwright and music composer Ernest Bourget, while visiting a cafe, heard its composition played live without his permission. He got indignified when the restaurant expected him to pay for his meal while he would not be compensated for the usage of his music. His lawyer notified the cafe that they had to pay 10 francs (french currency of the time) for each musical performance based on his work or to cease performing them immediately.
He brought action against the cafe and the Cour d’Appel de Paris settled the matter and decided to side decisively in favor of Bourget in 1849. The court victory established the principle of right to public performance of such works. His new income sources needed management, monitoring and enforcement. So in 1850 him and three other composers founded the world’s first authors’ society for rights of music (SACEM) to represent all the rights owners and handle administration and licensing as a global entity.
The Berne Convention
This need for an international harmonization of ownership rights was being pushed by authors all over the world (one of the main proponent being the french writer Victor Hugo). This lead to the organization in 1886 of a convention, the Berne Convention for the Protection of Literary and Artistic Works, regrouping most of the world countries (10 of them at first) to decide how to handle and uniformize protection of artistic works across frontiers.
Role of ALAI in the Berne Convention
Victor Hugo together with other writers founded in 1878 the Literary and Artistic International Association (ALAI) to promote an international convention for the protection of writers’ and artists’ rights. Despite artistic works being protected in the country of origin of the authors there was no way to exercise the same rights in other states. A publisher could take an English works, translate it and sell it anywhere it wanted without legislation. ALAI goals were to provide a set of tool for authors to make their rights respected in other countries. They achieved their purpose with the Berne Convention in 1886 with the adoption of authors’ rights as opposed to the copyright idea thanks to their influence.
A) National treatment — Each member state shall treat an author national from another country, or a work originally from another country, in the same manner and observe the same level of protection guaranteed to its own nationals.
B) Automatic protection — Protection must not be conditional upon compliance with any formality. No registration, or other administrative procedures are required to guarantee protection.
C) Independence of protection — Protection in a member-state does not require the existence of protection in the country of origin of the work. If however, a Contracting State provides for their nationals, a longer term of protection than the minimum prescribed by the Convention when the work ceases to be protected in the country of origin, protection may be denied. In this case, the shorter protection term shall prevail.
The minimum standards of protection
Relate to the works and rights to be protected and to the duration of protection:
A) As to works, protection must include “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression”.
B) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:
- The right to translate
- The right to make adaptations and arrangements of the work
- The right to perform in public dramatic and musical works
- The right to recite literary works in public
- The right to communicate to the public the performance of such works
- The right to broadcast
- The right to make reproductions in any manner or form
- The right to use the work as a basis for an audiovisual work and the right to reproduce, distribute, perform in public or communicate that audiovisual work to the public.
C) Regarding the term of protection, the Convention provides for a minimum of 50 years from the first day of the year following the author’s death. National legislations of member states shall provide minimum 50 years post-mortem.
An important point of the Convention was the apparition of the “moral rights” notion, the innate right authors have to claim authorship of their work and the right to object to any mutilation, deformation or other modification of the work that would be prejudicial to the authors’ honor or reputation.
Author’s right and copyright
We noted previously when comparing the early European and U.S. legal systems that the first focuses on the author (author’s rights) while the second focuses on the economic aspect of the work (copyright). This distinction will have consequences with the Berne Convention. In effect, even when an author transfers his economic rights to a third party, his moral rights are not transferred. Meaning the author can still oppose any interference or modification of their works that could damage their reputation or honour.
As a result of this sociological and philosophical distinction, the U.S. didn’t sign the Berne Convention. It took some changes in the treaty (letting the national legislations decide about recognizing and accounting for moral rights) for the U.S. to finally sign in 1980.
Hence the initial goal of the Berne Convention which was to unify and harmonize the protection rules to make it possible for authors to claim their rights in other countries, did not globally reach its purpose until one century later.
The Berne Convention followed in the footstep of the Paris Convention for the Protection of Industrial property (1883). While the Berne Convention focused on the protection of scientific, literary and artistic works the Paris Convention dealt with “intellectual property”, not limited to the artistic field but including also the industrial and technological fields.
“Intellectual property” applies to industrial property in the widest sense: trademarks, patents, designs, etc. The initiative came from the countries that were technological developers and providers in order to facilitate the flow of technologies between member states, creating a common requirement for patents and offering national treatment for foreign inventors.
There was a need for two different multilateral agreements in order to protect intellectual works due to the fundamental difference between intellectual works to be used in industries and works focusing on creating arts. Intellectual efforts for the industry must deliver improvements in the existing processes. To be granted a patent or a trademark multiple legal requirements must be followed otherwise the applicant will be denied the exclusive rights. Whereas artistic works rights exists at the point of creation and no procedure or process is needed by the author to acquire them. Industrial property is a privilege granted by the authority when evidence of compliance to the requirements is provided. Meanwhile authors’ rights are justified simply by the creation of the artistic work.
Furthermore the Berne Convention recognized the public performance rights of authors and composers but this time under an international law. This lead to the creation of collective management organization in mostly every country: SIAE in Italy in 1882, GEMA in Germany in 1903, PRS in England in 1914, etc.
20th century: war years and mass communication
Berne Convention evolution
Following its initial adoption in 1886, multiple changes were made to the Berne Convention in order to consolidate its three main principles, to guarantee protection during this period of intense technological progress (new media and new distribution types) and to incite more countries to join it.
The Berlin Act of 1908 enforced the principle of automatic protection by prohibiting all the formalities necessary to obtain protection in order to obtain the Convention rights. Plus, photography got added into the subject matter under protection.
The Rome revision of 1928 expressly recognized moral rights and the rights to license or forbid the broadcasting of works, leaving the details to national legislations.
The Brussel Act of 1948 made the fifty-year post mortem term of protection mandatory. And added cinematographic works into the subject matter under protection.
The Stockholm Act of 1967 extended the protections to authors living in a Union country (not just being one of their citizen) and also added protocols to help developing countries with rights of translation and reproduction.
The Paris Act of 1971 superseded the Stockholm Act by adding significant changes to the rules regarding developing countries.
The new media revolution
Technological innovations lead to new types of creative works (sound recordings, moving images, moving images with sounds, etc) and mode of exploitation (phonograph, radio, television, …) of these work. The existing legal system was initially created with literary works in mind and later expanded to musical works. Therefore changes had to be made to accommodate new ways of using copyrighted material. Thus photography and cinematography were recognized as artistic works and added to the scope of the Berne Convention.
Technological innovations was moved by the will to expand the reach of creative works and greatly impacted the mode of diffusion of copyrighted works. These new technologies provided new mode of artistic expression but also new mass media to distribute them. Leading to a need for clarification of the rights involved in this mass media environment. For example, mass adoption of television threatened the major movie studio. How would the film industry, based on box office revenues, would get compensated when TV broadcasting was free? The economic income was totally different and shift in the mode of economic compensation was needed.
With the advent of sound recordings new actors became involved in the copyright system. Not only the authors needed protection but the performers or producers of the works as well. As we saw previously making new recordings required the authorization of the authors or the copyright owners.
Recordings introduced issues related to artists labor. Before recordings, performers and musicians earned a living performing live in front of a public. They were paid every time they performed. With the advent of recordings they would be paid only once while their work continued to earn money over time. The same issue happened with actor who used to be paid to perform live on stage before the advent of the film industry. They now required them to work only once and movies could be distributed an unlimited amount of times. Film producers could continue to benefit from the commercial exploitation of the works over time while performers did not.
The Rome Convention dealt with this issue by introducing a new category of rights: the “neighboring rights” (or “related rights”). It aims to assure protection for performers’ performance, producers’ sound recording and broadcasting organizations’ broadcast.
To be more precise, neighboring rights are the approval of authors for fixation of their work ; the final product carry the authors’ rights but also the rights of everybody involved in its creation. Performers (actors, musicians, dancers, …) have the rights to consent or forbid certain acts such as broadcasting, public communication or fixation of a live performance. Producers have the rights to authorize or prohibit the direct or indirect reproduction of their products. Broadcasting organization have the rights to authorize or prohibit the rebroadcasting, fixation or reproduction of their broadcasts.
Universal Declaration of Human Right
After World War II the United Nation was created in order to facilitate international cooperation and prevent further global conflicts. In 1948 it released the Universal Declaration of Human Right based on principles of dignity, liberty, equality and brotherhood. Additionally Article 27 is related to copyright, stating that the rights creators have in relation of their intellectual work were from now on included in the category of human rights.
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2.Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
After two world wars authors emerged with their rights fortified and globally acknowledged. These rules lead to the fact that the moral and material interests of the authors are linked to the public interest. The right of public access does not have a priority in relation to the rights granted to authors, nor it is opposed. They are complimentary. Their would be no arts available to the public if there was no authors to create it. And there would be no rights to protect if the public was not willing to consume the copyrighted works.
Founding of CISAC
The first International Congress of Societies of Authors and Composers was promoted by four men in Paris in 1926. Romain Coolus said that “intelligence”, represented by the intellectual workers, was the third element between capital and labor. In order to defend it against the pressure of these two, all workers in the the realm of the arts and thought should unite in a confederation. It was this idea of a united global entity that lead these men to organise the Paris Congress and originated the creation of CISAC, the International Confederation of Societies of Authors and Composers.
SACD had this long-held idea of creation an international confederation to help break down the barriers between national authors’ societies in order to facilitate the cross-border flow of collected economic compensation and create a united front for the promotion of strong copyright legislation. By the date of the congress 18 national authors societies from fifteen countries agreed to attend and present their respective countries legal and economic pictures. By the end of the congress, all these societies agreed that they were pursuing the same goal and managed to find unity in the process of creating a confederation of societies encompassing the whole world. This post world war I pro globalization atmosphere and the need to resolve the challenges of cross countries collection lead to the creation of CISAC.
International treaties could define rights and method of protection but couldn’t solve the operational problem of claiming rights across borders. Management organization could represent each other across countries, for the benefice of the creators no matter what their citizenship was.
WIPO and WTO
In 1970 disputes regarding development and access to knowledge reached high political tensions. Less-developed countries feeling left out of the sharing of progress organised themselves into a coalition to defend a better multilateral world and prevent a concentration of power based on intellectual properties.
Furthermore the U.S. after the Vietnam War had to promote its own economy especially because of the growth in the software industry. Another new industry whose international legal protection was lacking. Thus the motivation for the U.S. to include software in the international legal framework was great. The Berne (literary, scientific and artistic works protection), Paris (industrial works protection) and Rome Convention (performers, products and broadcasters protection) already existing (and administered by WIPO), the logical step would have been to use the automatic protection of the Berne Convention.The only issue, as seen previously, was that the U.S. did not belong to the Berne Convention. So they joined in 1990 and software was included.
Furthermore the negotiations to amend the Paris Convention to include the new technological changes in works distribution means were stalling and reached a stop due to divergent views between developed and developing countries. All these conflicts lead to a set of agreements being signed, one leading to the creation of the World Trade Organization (WTO), others to set a framework to resolve conflicts or regulate trades (TRIP).
WIPO not wanting to lose its relevance also promoted new treaties like the Copyright Treaty of 1996 dealing some protection under the Berne Convention for the new digital environment. Or the Performers and Phonograms Treaty of 1996 also dealing with the music actors’ rights in the digital world. International politics and international bureaucracy at its finest.
21st century: the digital life
The 21th century revolutionized all the business model of the copyright businesses. A drop in the demand for physical support by the public in favor of digital one threatened all the existing mode of compensation. Copies of works were still delivered but via new means of digital transmission. Leading to people less willing to pay to access intangible digital files.
At the end of the 20th century the first digital service offering copyrighted works started operating, initiating heated debates since then. These providers were drastically new players, nothing like them existed until the mid 1990s. They offered a different kind of distribution methods like straight distribution of copies via download, access to only watch or listen or a mix of both, etc.
As said earlier, WIPO passed new treaties in 1996 following the growth of the software industry to deal with the new modes of exploitations of copyright works. WCT (World Copyright Treaty) brought computers programs and compilations of data (databases) into the scope of copyrighted works. Additionally it expanded the author’s’ rights recognised by the Berne Convention by adding to the right of communication to the public new situations raised by digital exploitation (“any communication to the public, by wire or wireless means”, “public may access these works from a place and a time individually chosen by them”).
But the WCT was not adopted by all members of the Berne Convention. Meaning not all national legislation included the new clarifications. The same set of clarifications were introduced on top of the Rome Convention with the WPPT (World Performances and Phonograms Treaty). It defined the rights to “make available” in the context of digital business (“wire or wireless means”, “place and time individually chosen by the public”). As with the WCT, not all members of the Rome Convention signed the WPPT. Leading to differences between national legislations.
In the previous era of communication one person or company delivered a message to a large group of people via a mean of communication (leading to no contact between the people offering and people receiving content). Revenues were generated by selling advertising space on the mean of distribution. The broader and more efficient the distribution the most expensive the advertisements could be.
In this new era the customer has the power to pick what they want and when and where they want it delivered. Each consumer interact individually with the digital service providers. The interaction between consumers and producers have dramatically changed.
This lead to changes in some concepts linked to copyrights. As an example, the concept of “public” become irrelevant as there is no more groups of people accessing the same distributed work but individual people cherry picking what they want. Therefore what become the meaning of “communication to the public” in the copyright treaties? Or what rights are involved when a streaming service allow people to keep a copy of works for offline consumption? More questions are also raised on the fair compensation of the copyrighted works like who decide the revenues share splits between all the actors? The DSP, songwriter or producers? The DSP do not participate in the creation of works, just in the delivery which as no associated cost. But without delivery the works have no public and there is no money being made. This period of intense accelerated changes put a lot of challenges in front of intellectual properties actors.
Authors’ societies in the digital world
This bring new challenges especially for author’s societies whose focus needed to shift and technical capabilities had to adapt to a new world.
Licensing rights revenues became more prevalent as the revenues coming from selling of physical copies of copyrighted works kept dwindling. Plus on-demand services mix the act of reproduction, distribution and communication to the public in such a way that licenses need to find new ways to adapt existing models. Big data is now a capital assets with billions of data points available everyday to understand customers and being able to accurately reports authors’ earnings. Societies must maintain huge databases of their works under managements, of all the rights involved and make them available to all the online services. Distribution services has to handle these billions of data points in order to calculate and share the revenues correctly among the artists’ represented. Even if societies have massively improved their processes, all these points are still big challenges nowadays with societies having a hard time moving fast enough and adapting to the new ways the works are being consumed.
We reached the end of our story with more questions than answers. This new digital age raises new issues about the economic compensation of actors in the intellectual property world. Who has the stronger negotiating position? Authors and copyrights’ owners or the new online distribution services? Or maybe is it the consumers? Who should mediate on any disputes between the involved parties? Should governments be involved and have laws interject in the negotiations?
We saw over the ages the evolution of the authors’ place in the economic landscape and their way from being unfairly compensated and their work ripped off for mass consumption to being under protection of human rights international laws. But the question of how and how much authors’ of copyright works must be available to the public and at the same time be economically viable for the owners seems like an eternal question whose answer change constantly with new technical innovations and the social changes they bring.
Next we will look in detail in a one of the biggest copyright industry which also was one of the most impacted by the shift in business model, the music industry.