Abstract
Copyright is a form of property created by statute. The first national copyright codes were passed in the United Kingdom in 1710 and in the United States in 1790 but the origins of copyright law can be traced from the social, political and legal thought of Greece and Rome, and the history of property relations in western Europe. In other parts of the world, different societies developed conceptions of ownership similar to those of European societies. Some defined title in very different ways, and others bypassed any notion of possessive individual ownership.
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Notes
- 1.
Sir William Blackstone, in his Commentaries on the Laws of England (1766) famously called property the ‘sole despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’. A shorter way of expressing Blackstone’s proposition is to say that property is that which the law makes subject to a person’s exclusive control. Property is anything (including things abstract) that is definable, and defined, and which legislators agree may be controlled, or owned, by people (or a proxy, like a company).
- 2.
In France, monarchs granted limited printing patents from the sixteenth century. In the throes of revolution, a decree of 1793 created authors’ rights in France (Décret de la Convention Nationale du dix-neuf juillet 1793 relatif aux droits de propriété des Auteurs d’écrits en tout genre, des Compositeurs de musique, des Peintres et des Dessinateurs (avec le rapport de Lakanal) or Decree of the National Convention, of 19 July 1793, concerning authors’ property rights in all types of writing and the rights in their work of composers of music, painters and illustrators). Codification in civil law countries followed in the nineteenth century creating copyrights that recognized droit d’auteur including moral rights.
- 3.
See discussion of obligation-based society.
- 4.
The Berne Convention for the Protection of Literary and Artistic Works (1886) provides that moral rights survive the death of the author and are exercisable, at least until copyright is extinguished, by persons or institutions nominated in legislation (Article 6 bis). The legislation of some countries, such as France, provides for moral rights to exist in perpetuity.
- 5.
In France, moral rights consist of, in addition to the rights of attribution and integrity, the rights of publication and withdrawal (see Code de la propriété intellectuelle or Intellectual Property Code).
- 6.
The French law, however, is called the Code de la propriété intellectuelle. French legal usage has increasingly accepted the Anglo-Saxon term ‘intellectual property’ to signify that copyright protection applies to ‘intellectual’ output. Increasingly, lawyers use the term droit intellectuelle to describe copyright.
- 7.
Issued under the Emperor Justinian’s direction, from ad 529–533, the Corpus Juris Civilis, consisting of the Code, Novels, Institutes and Digest, restated and expanded Roman law. The law explained abstract or incorporeal property by reference to incorporeal things and usufruct (see Book II Chapters II and IV of the Institutes). Justice Arthur Emmett of the Australian Federal Court has pointed out (conference paper 2011) that while Roman law did not recognise the right to control copying of works, it established principles that could later be adapted to define the categories of literary property and other species of copyright. In particular, the idea of usufruct, which referred to the right of a person to enjoy the fruits—the product, like farm produce, of something regenerative—of another’s property, accommodates the idea of the author enjoying the fruit (royalties) of something regenerative (a literary work). The usufruct itself was an incorporeal thing, a legal interest. According to Emmett, if analogy is made between the Roman law of usufruct and modern law of copyright, the author has rights of usufruct which expire on death. Subject to usufruct, the work or property is in the public domain. However, Roman law did not recognise literary property.
- 8.
The Church Fathers, theologians and teachers from the eastern and western empire, spoke vehemently, in sermons and writings over a number of centuries, against the accumulation of possessions and the exclusion of the poor from the benefits of those possessions. A number, especially St Iranaeus (130–202), St Basil the Great (329–79), St Ambrose (340–97), St Augustine (354–430) and St John Chrysostom (347–407) attacked covetousness and selfishness—the ‘pride of life’ (1 John 2:16)—that led some to concentrate wealth while neglecting to share for the common good.
- 9.
In the Republic, Plato posited, in the dialogues of Socrates, that private property—and money—encouraged in humans hatred, plotting and fear. He advocated, initially, a polis governed by ‘guardians’ who live without property or family.
- 10.
Aristotle, Politics, Book II, Pt V.
- 11.
Proudhon (1840/1994).
- 12.
An animist tribe obeying the edicts of elders fulfilled obligations to honour ancestors by living in certain ways in the physical environment. Before European penetration, many non-European societies, including the indigenous cultures of North America and Australia, shared knowledge about their natural surroundings, including the medicinal properties of plants, and collected and retold folklore and other stories. But they had no conception of individual entitlement: tales about nature, stories about people, were a collective inheritance.
- 13.
See, for instance, discussion of the relevance of traditional cultural obligations in the production of indigenous artworks in the Australian case of John Bulun Bulun & Anor v. R & T Textiles Pty Ltd [1998] Federal Court of Australia, 1082 (3 September 1998) at www.austlii.edu.au. See also discussion in the Australian publication, Our Culture Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (Janke 1998).
- 14.
Woodblock printing for textiles appeared in China around ad 220 and ceramic movable type came into use in the eleventh century. A court official and a scholar invented wooden and metallic movable types in the fourteenth and fifteenth centuries respectively.
- 15.
- 16.
Meyer-Fong (2007).
- 17.
The author of the Mahabharata, including the Bhagavad Gītā, is said to be Vyasa, a mythic figure who appears in the text. Anonymous writers contributed, over many centuries, to the threefold enlargement of the original document. In the fourth century bc, the Ramayana, an epic poem written in Sanskrit, and attributed by Hindu tradition to the sage Valmiki, appeared in India and came to influence Indian culture co-extensively with the Mahabharata.
- 18.
The Mughal invasion of India resulted in the creation of a different tradition in which poets, historians and writers patronized by the court flourished (see e.g. Losty and Roy 2012).
- 19.
See Raslan (2007), pp. 497–559.
- 20.
The nineteenth-century author Walter Copinger, author of the famous English legal textbook The Law of Copyright (1870—now in its 15th edition as Copinger and Skone James on Copyright) argued that the Roman world embraced a notion of literary property. According to Copinger, the Roman playwright Terence (d. 159 bc) sold copies of Eununchus and Hecyra, and the poet Statius (ad 45–96) sold copies of Agave.
- 21.
Plutarch (1968). Cicero’s opposition to Mark Antony, expressed in the Philippics, led to his proscription and murder by Mark Antony in 43 bc. Octavian, then allied to Antony, but later victor over him in civil war, consented to proscription of Cicero.
- 22.
The Institutes of Justinian (ad 533) distinguished between corporeal and incorporeal property and they also interpreted the doctrine of accessio or merger to favour, in some circumstances, ownership by the artist of objects embodying art. Whether the artist owned the object seemed to depend on the quality of the art (Institutes 2.1 33–34).
- 23.
On the history of common land, see Clark and Clark (2001), pp. 1009–1036. The authors estimate that by 1500 common land constituted only one-third of total land in England and by 1600, waste (land unencumbered by any proprietary restrictions) only 4 % of total land.
- 24.
Chroust and Affeldt (1950–1951).
- 25.
Id.
- 26.
‘The possession of all things in common is ascribed to the natural law; not in the sense that the natural law dictates that all things should be possessed in common, and that nothing should be possessed as one’s own; but in the sense that no division of property is made by the natural law. This division arose from human agreement which belongs to the positive law …. Hence the ownership of possessions is not contrary to the natural law, but a super-addition thereto devised by human reason.’ (St Thomas Aquinas Summa Theologica 2.2 quaest art 2 ad 1).
- 27.
The idea of ‘solidarity’ is central to patristic commentary, and the teaching of Catholic and Orthodox churches to the present. It encapsulates the Christian concept of equality, which is based on the principle that every person is, from conception, and without limitation, a child of God, called by God to express the volition implied in this identity: to find union with God by love (the essence of divine nature), to know God (to understand the meaning of love), and to serve God (a chief expression of love).
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Atkinson, B., Fitzgerald, B. (2014). Origins. In: A Short History of Copyright. Springer, Cham. https://doi.org/10.1007/978-3-319-02075-4_2
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