Open access to scholarly knowledge in the digital era (chapter 2.1): Insights for today from the historical origins of modern copyright

This article is chapter 2.1 in section 2 of a series of articles summarising the book Reassembling Scholarly Communications: Histories, Infrastructures, and Global Politics of Open Access.

In this first chapter of the knowledge cultures section, John Willinsky explores how it is that learning held such a place in the introduction of modern copyright law, when the law today offers so little encouragement to pursue what researchers, funders, librarians, and publishers now agree is learning’s optimal state for the digital era – namely, “open access”?

Willinsky begins with the singular historical fact that constitutes his chapter’s endpoint. On 5 April 1710, after nearly two decades of political wrangling over the reinstatement of some form of book licensing in Great Britain, the British Parliament passed the Statute of Anne 1710.

Its extended title begins, “An Act for the Encouragement of Learning …” and Willinsky advises that one of the things that makes this act remarkable is how much of that “encouragement” the bill contained. Another is that the act successfully launched the modern era of copyright law. For the first time, a legislative body recognized that the author of a work possessed rights over its reproduction, if for a limited term of up to 28 years.

The encouragement of learning was not the whole of the impetus for this new law, but Willinsky contends that the part that it played is surely worth pausing over today in light of the great turmoil and promise currently surrounding new models of scholarly publishing.

Willinsky states that what success open access has achieved in all of this is largely the result of what amounts to copyright workarounds. For example, authors and journals use Creative Commons licenses to grant rights to users that the law does not. Funding agencies enter into a contract with grantees, as part of open-access mandates, that prevents them from, in effect, fully exercising their copyright. Given that the law is doing little enough to encourage learning in the digital era, grounds exist for revisiting learning’s role in the origins of modern copyright. Willinsky asks us to think of it as a first step in considering how the law might once again encourage this form of learning.

In response to the question of how learning first became central to the origins of modern copyright, Willinsky puts forward philosopher John Locke as a guide. In the 1690s, Locke’s earnest lobbying on learning’s behalf contributed to the lead up to the Statute of Anne 1710, which, as he died in 1704, he unfortunately did not live to see pass. Amid late seventeenth- century debates over regulation of printing, Locke served as something of a public defender of scholarly interests.

Willinsky advises that Locke’s contribution to the formation of early copyright law is also worth considering for what it can teach about his influential natural law theory of property. Locke made property a matter of human rights under natural law. Those rights extended, he held, to the individual’s right of consent in democratic governance. This was in stark contrast, Locke insisted, to the authority that kings presumed to have over property and individuals through a divine right.

To consider his argument for property rights, in Two Treatises of Government (published anonymously in 1689), he posits a world that in its original state is given in common to humankind. Allowing that individuals have a right in themselves, they are able to acquire from the commons that which they labor over. Their acquisitions are subject to natural constraints, to ensure that there is “enough, and as good, left in common for others” and that holding such property did not lead to its spoilage or waste.

Locke’s theory of property continues to be a major influence in the field of intellectual property jurisprudence. Yet few of those considering his theory look to how he applied it to the Parliamentary proposals he made on the regulation of printing. Willinsky contends that Locke’s theory of property informs his legislative suggestions, particularly around balancing authors’ ownership rights with the distinctive access and use rights that facilitate scholarship that were to find a place in the Statute of Anne 1710.

Locke’s lobbying

On 2 January 1693, Locke appears to have initiated his attempt to influence Parliament with a letter to his longstanding friend Edward Clarke, who was then serving as the Whig Member of Parliament from Taunton. The letter expresses Locke’s concerns about the current state of the book trade. In his letter, Locke asked Clarke to consider the damage done to learning by the Stationers’ Company book monopolies granted by the Press Act of 1662. Such monopolies made it nearly impossible to undertake improved editions or import such editions of classical authors:

I wish you would have some care of Book buyers as well as all of Book sellers, and the Company of Stationers who haveing got a Patent for all or most of the Ancient Latin Authors (by what right or pretence I know not) claime the text to be their and soe will not suffer fairer and more correct Editions than any thing they print here or with new Comments to be imported … whereby these most usefull books are excessively dear to schollers.

Locke’s letter to Clarke was too little too late. The Press Act was renewed in March 1693. It was only extended this time, however, for two years, indicating Parliament’s lack of enthusiasm for book licensing, despite the case made for it by the Stationers’ Company. The limited-terms renewal appears to have given Locke hope, as he continued his campaign against any further renewal of the act. To prevent that from happening, he worked not only with Clarke, but involved, in what he referred to as “the Colledg” (college), both John Freke, a lawyer and Whig lobbyist, and John Somers, who held the parliamentary post of lord keeper of the great seal and who was a member of the Privy Council.

In 1694, Clarke was appointed to the House of Commons committee to review those laws that were about to expire, the 1662 Press Act among them. To assist Clarke in preventing the renewal, Locke prepared a memorandum for his friend which begins by sounding the familiar trumpet of a free press: “I know not why a man should not have liberty to print what ever he would speake.”

To require that a license to print a work be obtained in advance was to Locke like “gagging a man for fear he should talk heresy or sedition.” All that was required, he proposed, was that the printer or author be clearly identified in the book to ensure that someone will “be answerable for” any legal transgressions. As things stood, as he puts it, “Scholars in particular are ground [down] and nobody gets [anything] but a lazy ignorant Company of Stationers.”

Locke’s overarching concern for scholars’ rights to access works led him to a backhanded commendation of the 1662 Press Act’s requirement that a free copy of each new book be sent to “the public libraries of both universities.” Willinsky states that from his perspective, the book deposit stipulation demonstrates how commerce sponsors, even as it stands apart from, the commons of learning. The public library of the university was that commons, when it came to the properties of learning.

As part of Locke’s concern for his balance of rights, he objected to the perpetual monopolies granted to the Stationers’ Company. In its place, he recommended limits to the ability to purchase or sell rights in a work “to a certain number of years after the death of the author or the first printing of the book.” This would encourage the publication of new editions of older works, in contrast to the current situation in which “the Company of Stationers have a monopoly of all the classic authors.” Locke also objected to restrictions on the importing of books into Britain.

What Locke ultimately bemoans in his memo on the Press Act of 1662 is that it is “so manifest an invasion on the trade, liberty, and property of the subject” that it places under siege what he sees to be the intellectual property rights of the learned. As Locke saw it, access to this literature must be facilitated for scholars rather than impeded by unfair trade practices such as perpetual monopolies and book blockades: “That any person or company should have patents for the sole printing of ancient authors” he concludes in the memo, “is very unreasonable and injurious to learning.”

In 1695, not long after Locke’s memo, Clarke began to work with fellow legislator Robert Harley, Earl of Oxford, on a “Bill for the Better Regulating of Printing and Printing Presses.” Their proposed bill had the virtue of exempting from state licensing books that dealt with science, arts, and heraldry. It made no reference to a number of previously granted privileges, including the Stationers’ Company monopolies and the universities’ printing rights. Locke was not involved in Clarke and Harley’s initial drafting of the new bill, but they sent him a copy of it and he proposed amendments. These include that the new bill should “secure the author’s property in his copy” for a limited time, with this property in a work safeguarded by a suggested registration process involving university library deposit.

While Locke argues for the authors’ intellectual property rights, the registration process he recommends could also be said to protect the rights of learning. He makes the authors’ limited privileges dependent on depositing the work in the public libraries of the universities for the use of scholars. Authors are to be encouraged with an eye to the use of their work by the learned. In a similar spirit, Locke also proposed that authors should retain a right over subsequent editions of their work.

Still, Clarke and Harley’s “Better Regulating of Printing” bill ran into the vehement objections of the Stationers’ Company. Although the bill was not to attract the votes it needed and died on the floor of the Commons in 1695, Clarke and others had effectively sown the seeds of doubt about the Press Act of 1662, and that same year both the House of Commons and the House of Lords voted not to renew the act. It expired on 3 May 1695, putting an end to well over a century of press censorship, permanent monopolies, and a generally corrupted state of press regulation.

Piracy’s interlude

Immediately following the expiry of print licensing in 1695, upstart printers and booksellers flooded the streets of London with an inventive array of broadsides and gazettes, cheap pirated editions of books and magazines, and scandalous and obscene pamphlets. By 1709, there were as many as eighteen London newspapers, including the first daily.

The Stationers’ Company denounced, with increasing rancor and outrage, a market flooded with cheap reprints of its titles. Since the 1680s, printers of such works were accused of piracy, but Willinsky states that it was, in fact, a free market in print materials. The Stationers’ Company returned to Parliament in search of remedy, only to find reintroducing press regulation an uphill battle. Following the Licensing Act’s expiry in 1695, the Company promoted one unsuccessful parliamentary bill after another, while petitions were also submitted to no avail by the Church of England, Oxford University, and groups of journeymen printers.

In 1704 (the year of Locke’s death), after the Company sponsored the introduction into Parliament of a “Bill to Restrain the Licentiousness of the Press” to no avail, it decided on another tactic. It embraced the language of learning, having earlier opposed its advocates including Locke.

In 1706, the anonymous one-page petition Reasons Humbly Offer’d for a Bill for the Encouragement of Learning, and the Improvement of Printing was presented before Parliament, likely with the Stationers’ Company support. The petition reflects the concern that “Learned Men will be wholly Discouraged from Propagating the most useful Parts of Knowledge,” given how easily their work could be pirated without state oversight.

A further iteration of the petition, combining authors’ natural rights to their work and the public good of learning, was drafted and introduced into Parliament on 11 January 1710. It was entitled the “Bill for the Encouragement of Learning, and for the Securing of Property of Copies of Books to the Rightful Owners thereof.”

The bill refers to “Books and Writings” as “the undoubted Property” of authors, with such property regarded as “the Product of their Learning and Labor,” with labor being the key to Locke’s theory of property. This was soon struck from the bill, so that an author’s earned right of ownership is left implicit. As such, ownership is left to natural and common law, while the act determines that from such ownership, authors have a right to a limited-term monopoly to encourage their contribution to learning.

Statute of Anne 1710

The statute that was passed on 5 April 1710, begins “An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” Willinsky asks us to note how the act’s title no longer sets out the encouragement of learning and the securing of property rights as two distinct purposes. Rather, it makes the encouragement of learning the very principle behind granting such property rights. Further, the switch from “securing” to “vesting” suggests that the act is not about pinning down a right but about placing a right-to copy in the hands of authors for a limited term.

Of the roughly ten provisions that in the statute, Willinsky sees four as setting out the distinctive rights associated with learning. Two of these measures spoke directly to Locke’s earlier concerns. The first addresses the price of learned books, and the second kept open a channel for learned books published abroad.

The other two measures in support of learning were brought forward, in an enhanced form, from the Licensing Act of 1662. One was a reinstatement of the book deposit policy. Where the Licensing Act set aside three copies for learning, the Statute of Anne 1710 increased the number to nine on the best paper. Legal book deposit was to later grow into a common legislative requirement throughout the world.

The final measure in the statute declares that nothing herein should “prejudice or confirm any right that the said universities” had “to the printing or reprinting any book or copy already printed, or hereafter to be printed.” Much as with the libraries and legal deposit, university presses were recognized as standing apart from the common book trade and worth protecting as such.

The Statute of Anne 1710 further opened the book market and introduced an age of copyright that also granted distinct privileges of access to learning; that is, the law would now offer people a right to fairly priced books, imported books, books on library shelves, new and better editions from abroad, and books printed at university presses.

Still, Willinsky alerts that it needs to be made clear that the guild members of the Stationers’ Company were undoubtedly the principal financial beneficiaries of the act. Yet it did not put an end to print piracy, given that the act did not, for example, extend to Ireland.

A decade or so later, the Statute of Anne inspired a similarly spirited intellectual property clause in the U.S. Constitution in 1788 that empowers Congress to pass laws “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This concept of copyright as a legal vesting of limited-term rights in the author was to spread slowly around the world.

Potential insights for today

The Statute of Anne 1710 managed to bring into a legislative order the interests and rights of authors, scholars (also as authors), printers, and booksellers. If printers and booksellers were the ones who profited, authors and scholars had their rights advanced.

Three centuries later, amid the emergence of the digital era, a new order of scholarly publishing is struggling to form, caught once more between powerful commercial forces and the distinctive interests of opening up a global commons for learning. Much as Locke did earlier, scholars and research librarians are speaking out and lobbying today in favor of increased access to needed works and resources.

The Statute of Anne created what was, in effect, a special intellectual property class for works of learning. Willinsky advises that this eighteenth-century legal reform of book regulation is worth reconsidering today. Much of its original protection has been lost and few legal limits exist today on publisher pricing and profits in the field of scholarly publishing. At the same time, the law has yet to offer ways of encouraging the degree of access and openness that many are finding to be the great promise of the digital era for learning.

Willinsky states that at the very least, the history of the Statute of Anne 1710 should incite academics and librarians to speak up in defense of legal rights that encourage learning. They should support the effective lobbying work for open learning and science carried on by organizations such as the Scholarly Publishing and Academic Resource Coalition (SPARC).

In conclusion, Willinsky implores us to, once again, find the advantages for learning among the play of commercial interests, knowing that this was nothing less than the original intent of copyright law and is no less worthy a goal today.

Next part (chapter 2.2): How does a format make a public?

Article source: This article is an edited summary of Chapter 5¹ of the book Reassembling scholarly communications: Histories, infrastructures, and global politics of Open Access² which has been published by MIT Press under a CC BY 4.0 Creative Commons license.

Article license: This article is published under a CC BY 4.0 Creative Commons license.

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