In an article in the London Review of Books in 1995 John Sutherland wrote: ‘Momentous changes in copyright law, such as those of 1710, 1842, 1890 and 1911, are preceded by periods of turmoil and radical uncertainty about the rights and wrongs of intellectual property. We are in such a period now.’
Sutherland could hardly have foreseen how much more uncertain things were about to become. The particular issue exercising him at the time, harmonisation of UK law with the latest EU regulations on copyright, surely pales into insignificance compared to subsequent events. The threat from internet piracy, the emergence of Amazon as a dominant player in book supply and the Google Books settlement: all of these were seismic developments, the cumulative effects of which has been to transform the landscape of publishing utterly.
Intellectual property rights are fundamental to any publishing business, so disruption in this area strikes to the heart. And disruption there has been. In Google and Amazon, Publishers have not just new competitors, but competitors from an entirely different part of the publishing value chain – the distribution end. And far from seeking to compete on a level playing field, these players have at times seemed to want to take their bulldozers to the pitch.
Google, in particular, seems to want to move the goalposts on copyright. And there have been howls of protest. ‘Say goodbye to your rights forever, authors, if this mess goes through’, said Lynn Chu, Principal at Writer’s Representatives LLC, writing in the Wall Street Journal last Spring (Google’s Book Settlement Is a Ripoff for Authors). At time of writing, a federal judge in New York is about to hear arguments over whether to approve the Google Book Settlement. The Settlement is far from settled, still, almost six years after Google first started digitizing the University of Michigan library.
You have to go back further than Sutherland to find a comparable period when quite so much seemed up for grabs in copyright; back to age of Caxton and Guttenberg.
The birth of copyright
According to William St Clair (The Reading Nation in the Romantic Period, Cambridge, July 2004) the need for protection of intellectual property rights in text-based works arose with the invention of the printing press. It was not authors looking for protection in 16th Century England, but printers.
Hand-copying by monks, which machine printing replaced, had required no commitment of fixed capital. With capital tied up in machinery and a stock of type, and inventory in the warehouse, early printers found themselves with an investment that was highly vunerable to the cut-throat competition of the emerging market. By 1553 competition between printers had come to an end by mutual agreement; but their investments still needed protection from rogue traders and foreign pirates. This protection was provided by the state, through the system of royal privileges.
In 1583, the Privy Council recommended that the first printer of a text be granted exclusive rights to that text. Following this, the Stationers’ Company, a London guild which received a royal charter of incorporation in 1557, established a ‘quasi-monopolistic’ ownership of the most well-known titles. A system grew up of monopoly rights in individual texts, which were held in perpetuity.
Although this framework of regulation came in to being to protect the investments of printers, control of this nascent industry passed early on from printers to booksellers; from manufacturers to distributors. Printers found that they were now fee-paid contractors in the publishing process. Publishing became virtualized, and has been a heavily outsourced industry ever since. The investment risk in publishing passed into the hands of entrepreneurs more comfortable dealing with ‘assets which existed only in the virtual world of agreements, claims, obligations, and promises’ than were printers, presumably.
So where were authors in all this? The answer is nowhere. Not until the 1709 (or 1710) act, known as the Statute of Anne, were authors given any rights over their work. Even then, the full provisions of the Act did not come into force for a further 64 years. Dr Johnson, who lived during this period, exercised a degree of influence over his printed works that stopped short of actual control. Famously, his Lives of the Poets contained a lot of C-list writers, many of whose fame had barely survived their own deaths, because his publishers, not he, got to chose about whom he wrote.
Not until the Nineteenth Century, and the generation of the Romantics, did writers begin to achieve, and exercise, some real clout in publishing.
Search = distribution
It’s not hard to see parallels with Google and Amazon in the early jostlings for control between different entities within the publishing value chain.
Intellectual property in a text, always the most virtual of assets, has undergone a further stage of virtualisation in our own time with the advent of digital media. It is in a sense only fitting that the project of digitizing the world’s books en masse should have been initiated by the most virtual of entities, Google, a company founded on internet search. It may seem strange to call Google a distributor, but in the disintermediated world of the internet, where the gap between consumer desire and supply has been reduced to one-click ordering, search surely becomes a function of distribution.
In any emerging free market, control tends to pass to the party most able and willing to handle the capitalisation necessary for the new distribution technology to achieve its market potential. That’s what seems to have happened at the end of the Sixteenth Century, when the booksellers (or ‘Stationers’) took over from the printers. And something similar has been underway in Google’s great digitization project, perhaps. No company other than Google has the ability (plus desire) to digitize books on the scale it has done, just as no other online distributor has Amazon’s reach. With scale, and first mover advantage of this order inevitably comes a degree of control that very quickly begins to feel oppressive.
None of which is to excuse in any way how Google has behaved in the courts. Personally, as an author whose moral right has been asserted, I can’t but cheer Lynn Chu on as she seeks to defend the hard-won rights of authors.
However, when she says that the Google settlement deal ‘reverses the economics of books’, it’s worth reflecting – if only to give a bit of context – on exactly how hard-won those authorial rights were, on how late authors came to the party, and on exactly whose interests copyright was invented to protect in the first place.
The Reading Nation in the Romantic Period by William St Clair
Cambridge, 765 pp, £90.00, July 2004, ISBN 0 521 81006 X
Authors and Owners: The Invention of Copyright by Mark Rose
Harvard, 176 pp, £21.95, October 1993, ISBN 0 674 05308 7
Articles in the London Review of Books (subscription needed):
The Great Copyright Disaster
John Sutherland, 12 January 1995
John Sutherland 2 October 1980
Out of Bounds
Ian Gilmour: why Wordsworth sold a lot less than Byron 20 January 2005