A Companion to the History of the Book (92 page)

References and Further Reading

Banerjee, Sumanto (1989) “Marginalization of Women’s Popular Culture in Nineteenth Century Bengal.” In Kumkum Sangari and Sudesh Vaid (eds.),
Recasting Women: Essays in Colonial History,
pp. 127–79. New Delhi: Khali for Women.

Bataille, George (1986) “Sexual Plethora and Death.” In
Eroticism,
pp. 94–108. San Francisco: City Lights.

Bayly, Susan (1999) “Race in Britain and India.” In Peter van der Veer and Hartmut Lehmann (eds.),

Nation and Religion: Perspectives on Europe and Asia,
pp. 71–95. Princeton: Princeton University Press.

Beisel, Nicola (1993) “Morals versus Art: Censorship, the Politics of Interpretation, and the Victorian Nude.”
American Sociological Review,
58: 145–62.

Bose, Pradip Kumar (1995) “Sons of the Nation: Child Rearing in the New Family.” In Partha Chatterjee (éd.),
Texts of Power: Emerging Disciplines in Colonial Bengal,
pp. 118–44. Minneapolis: University of Minnesota Press.

Bourdieu, Pierre (1984)
Distinction: A Social Critique of the Judgment of Taste,
trans. Richard Nice. London: Routledge and Kegan Paul.

— (1991) “Censorship and the Imposition of Form.” In
Language and Symbolic Power,
ed. John B. Thompson, trans. Gino Raymond and Mathew Adamson, pp. 137–59. Cambridge, MA: Harvard University Press.

Bristow, Edward (1977)
Vice and Vigilance: Purity Movements in Britain since 1700.
Dublin: Gill and Macmillan.

Butler, Judith (1998) “Ruled Out: Vocabularies of the Censor.” In Robert Post (éd.),
Censorship and Silencing: Practices of Cultural Regulation,
pp. 247–59 Los Angeles: Getty Research Institute for the History of Art and the Humanities.

Chatterjee, Partha (1995) “The Disciplines in Colonial Bengal.” In Partha Chatterjee (éd.),
Texts of Power: Emerging Disciplines in Colonial Bengal,
pp. 1–29. Minneapolis: University of Minnesota Press.

Counterpoint
(1978) “The Society for the Suppression of Public Obscenity in India.”
Counterpoint, 2:
179–211.

Das, Arjun (1935) “Display of Obscene Posters” (letter).
Tribune
[Bombay], May 17.

Davenport-Hines, Richard (1990)
Sex, Death and Punishment: Attitudes to Sex and Sexuality in Britain since the Renaissance.
London: Collins.

“Den” (1935) “The Anonymous Altruist.”
The Herald
[Melbourne], August 29.

Dowling, Linda (1996)
The Vulgarization of Art: The Victorians and Aesthetic Democracy.
Charlottes-ville: University Press of Virginia.

Dunstan, Keith (1972)
Wowsers: Being an Account of the Prudery Exhibited by Certain Outstanding Men and Women in such Matters as Drinking, Smoking, Prostitution, Censorship and Gambling,
2nd edn. Sydney: Angus and Robertson.

Dwivedi, R. C. (1981) “Concept of Obscenity
(Asli-lata)
in Sanskrit Poetics.”
Annals of the Bhandarkar Oriental Research Institute,
62 (1–4): 67–76.

Foucault, Michel (1990)
The History of Sexuality,
vol. 1:
An Introduction,
trans. Robert Hurley. New York: Vintage.

Goldstein, Robert Justin (1992) “A Land of Relative Freedom: Censorship of the Press and the Arts in the Nineteenth Century (1815–1914).” In Paul Hyland and Neil Sammells (eds.),
Writing and Censorship in Britain,
pp. 125–40. London: Routledge.

Gupta, Charu (2001)
Sexuality, Obscenity, and Community: Women, Muslims, and the Hindu Public in Colonial India.
Delhi: Permanent Black.

Heath, Deana (2003) “Creating the Moral Colonial Subject: Censorship in India and Australia, 1880s to 1939” Unpublished PhD thesis, University of California, Berkeley.

Hodges, Sarah (2005) “Indian Eugenics in an Age of Reform.” In Sarah Hodges (éd.),
Reproductive Health in India: History, Politics, Controversies.
Delhi: Orient Longman.

Hunt, Alan (1999)
Governing Morals: A Social History of Moral Regulation.
Cambridge: Cambridge University Press.

Hunt, Lynn (1993)
The Invention of Pornography: Obscenity and the Origins of Modernity.
New York: Zone.

Hunter, Ian, Saunders, David, and Williamson, Dugald (1993)
On Pornography: hiterature, Sexuality and Obscenity haw.
New York: St. Martin’s Press.

Katrak, Ketu H. (1992) “Indian Nationalism, Gandhian
Satyagraha,
and Representations of Female Sexuality.” In Andrew Parker (éd.),
Nationalisms and Sexualities,
pp. 395–406. New York: Routledge.

Kendrick, Walter (1987)
The Secret Museum: Pornography in Modern Culture.
New York: Viking.

Khosla, G. D. (1976)
Pornography and Censorship in India.
New Delhi: Indian Book Company.

Manchester, Colin (1991) “A History of the Crime of Obscene Libel.
“ Journal of Legal History,
12 (1): 37–57.

Masson-Moussaieff, J. (1971) “Obscenity in Sanskrit Literature.”
Mahfil,
7: 3–5.

Michelson, Peter (1993)
Speaking the Unspeakable: A Poetics of Obscenity.
Albany: State University of New York Press.

National Archives of India (1895) 83–83/January 1895, Separate Revenue (Post Office, General), A, Finance and Commerce Department.

— (1911) 6–10/October 1911, Post Office, A, Department of Commerce and Industry.

— (1923) 570/1923, Judicial, Home Department. Nead, Linda (1992)
The Female Nude: Art, Obscenity and Sexuality.
London: Routledge.

Pease, Allison (2000)
Modernism, Mass Culture, and the Aesthetics of Obscenity.
Cambridge: Cambridge University Press.

Pulían, Robert (1984)
Guilty Secrets: Free Speech in Australia.
North Ryde, Australia: Methuen.

Raychaudhuri, Tapan (1975) “Norms of Family Life and Personal Morality among the Bengali Hindu Elite, 1600–1850.” In Rachel Van M. Baumer (éd.),
Aspects of Bengali History and Society,
pp. 13–25. Honolulu: University Press of Hawaii.

Robb, Peter (ed.) (1995)
The Concept of Race in South Asia.
Delhi: Oxford University Press.

Roberts, M. J. D. (1992) “Blasphemy, Obscenity and the Courts: Contours of Tolerance in Nineteenth-century England.” In Paul Hyland and Neil Sammells (éd.),
Writing and Censorship in Britain,
pp. 141–53- London: Routledge.

Rosselli, John (1980) “The Self-image of Effete-ness: Physical Education and Nationalism in Nineteenth-century Bengal.”
Past and Present,
86: 121–48.

St. John-Stevas, Norman (1956)
Obscenity and the Law.
London: Seeker and Warburg.

Sarch, Amy (1987) “Those Dirty Ads ! Birth Control Advertising in the 1920s and 1930s.”
Critical Studies in Mass Communication,
14: 31–48.

Sarkar, Tamka (1998) “Orthodoxy, Cultural Nationalism, and
Hindutva
Violence: An Overview of the Gender Ideology of the Hindu Right.” In Ruth Roach Pierson and Nupur Chaudhuri (eds.),
Nation, Empire, Colony: Historicizing Gender and Race,
pp. 166–81. Indianapolis: Indiana University Press.

— (2001)
Hindu Wife, Hindu Nation: Community, Religion, and Cultural Nationalism.
Bloomington: Indiana University Press.

Saunders, David (1990) “Copyright, Obscenity and Literary History.”
English hiterary History,
57 (2): 431–44.

— (1992) “Victorian Obscenity Law: Negative Censorship or Positive Administration.” In Paul Hyland and Neil Sammells (eds.),
Writing and Censorship in Britain,
pp. 154–70. London: Routledge.

Schauer, Frederick (1998) “The Ontology of Censorship.” In Robert Post (éd.),
Censorship and Silencing: Practices of Cultural Regulation,
pp. 147– 68. Los Angeles: Getty Research Institute for the History of Art and the Humanities.

Shuger, Debora (1998) “Civility and Censorship in Early Modern England.” In Robert Post (éd.),
Censorship and Silencing: Practices of Cultural Regulation,
pp. 89–110. Los Angeles: Getty Research Institute for the History of Art and the Humanities.

Siebert, F. S. (1965)
Freedom of the Press in England, 1476–1776.
Urbana: University of Illinois Press.

The Sun
(1948) “A. I. F. Book Obscene: Firm Fined.”
The Sun
[Sydney], April 24.

Sutherland, J. (1982)
Offensive Literature: Decensor-ship in Britain, 1960–1982.
London: Junction.

Thomas, Donald (1969) A
Long Time Burning: The History of Literary Censorship in Britain.
London: Routledge and Kegan Paul.

Tribe, D. (1973)
Questions of Censorship.
London: Allen and Unwin.

38

Copyright and the Creation of Literary Property

John Feather

Copyright is defined by the
Oxford English Dictionary
as “the exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.” The first usage recorded there is in 1735, but the two words “copy” and “right” had been closely associated since at least the middle of the seventeenth century (Nichol 1990), and in the phrase “rights in copies” since before 1600. This chapter traces the development of the concept of copyright, and how its evolution has influenced both publishing and authorship.

The idea that authors “own” their books after publication is a product of European print culture and its worldwide offspring. Conceptually, it is a complex idea which might be thought to be in conflict with the whole notion of “ownership.” How can we sell something and still have a claim to it? In essence, that is the question with which generations of authors, publishers, and lawyers – especially lawyers – have had to grapple. The answer that has been developed is that we can distinguish between a physical object – a book, a drawing, a photograph – and its intellectual or artistic content. Ownership of the object does not confer ownership of the content. Once that principle is established, then the purpose of copyright law is to define the extent to which the owner of the physical object may legitimately make use of the content while ensuring that the creator and owner of the content (who may not be the same person) are appropriately rewarded.

The practical application of copyright law is important to everyone who writes, publishes, sells, buys, lends, borrows, or reads books. You may have bought this book, or you may have borrowed it from the person or organization that bought it. You have the undoubted right to read it – indeed, we who wrote and edited it want you to do just that! But you are not allowed to make unlimited photocopies or to digitize large parts of the book, or to use long passages as quotations in your own published work, although in each case you can ask for permission to do so and you may get that permission if you pay for it. Who gives permission depends on who owns the content: it might be the author or the publisher, depending on the formal contractual agreements between them, and in the case of a contributed book like this one the editors might also have some standing. And this is a simple case! Consider a complicated (and more commercially valuable) example: a book which is published in hardback and paperback, sold all over the world in its original language, translated into other languages, read on the radio with the recording published commercially, dramatized for television and the stage, made into a movie which has specially commissioned music and which is issued as a DVD with the sound track on a CD. The original book has generated dozens of different forms of content and output. This whole range of “rights” (as they are now commonly called) in these formats and media is, like the humble copyright in this book, regulated by law and contract in many different legal jurisdictions and traditions throughout the world. And this case is not a fantasy – or rather it is, because it is more or less the position of
The Lord of the Rings.

The issues, moreover, are not only legal and commercial. Once we accept the distinction between ownership of the content and ownership of the object – between book and text – there may be an impact on the attitude and behavior of the creator of the content. For Virgil, Chaucer, and almost every other ancient or medieval author, there was no serious possibility of financial reward beyond any which accrued from “selling” the “book” to a patron or a scribe. From Maecenas in the first century ad to the Earl of Leicester in the reign of Elizabeth I of England (1558–1603), the patron was the author’s principal source of income. For many writers, the real rewards actually lay in preferment to profitable jobs, in prestige, or (for many Christian writers) in moral satisfaction during their lifetimes or posthumous salvation. When writing and the distribution of writing began to move into a commercial sphere, however, writers could begin to see the possibility of financial benefits to themselves. The author of a printed book who sold what he had written to a printer was rather different from an author who “worked for” a patron. The author’s income, however, typically consisted only of the proceeds of that single sale. It was the author’s sole gain from the book, with the possible exception of the intangible benefits of a reputation. Nevertheless, the fact that printers were paying authors for books, and sometimes indeed commissioning them, opened up new possibilities and new modes of thought.

Some authors remained aloof from such mundane considerations. Perhaps because of the growing association between authorship and money, there were writers who deliberately avoided the marketplace, publishing their work anonymously, pseudonymously, or in a limited number of copies. The majority, however, were trying to maximize financial benefits from their work long before copyright was embodied in law. In eighteenth-century England, where many of the critical developments in copyright first happened, the phrase
literary property
came to be used to describe the author’s creation. Moreover, this idea soon extended beyond the written word. Graphic prints were protected before the end of the eighteenth century. During the nineteenth century, protection was extended to designs, the performance of plays and music, drawings and paintings, photographs and other derivatives of the imagination. Literary property thus evolved into copyright. In due course, copyright became part of the wider sphere of
intellectual property,
which now also encompasses the concept of patents in inventions, which have similar origins but a very different history. The second theme of this chapter is to explore how copyright evolved in practice, and the part which it plays in the history of authorship.

Copyright, as we now understand it, is essentially a product of the age of printing. The early printers soon discovered a basic fact of economic life: that printed books would only be profitable if enough copies were sold, that they would only sell if the price was acceptable, and that the right price could only be achieved by printing enough copies to keep the unit cost down to a level that could achieve a profit at a price acceptable to the market. It is a tricky and complex equation that is still a central business concern for a publisher. The first printers learned the hard way, by trial and (more often perhaps) error, and they soon came to recognize that one way to protect their investments in equipment, materials, and employees was to try to ensure that each product – each book – was unique, so that the competition was from other titles, not from other editions of the same text. The printers turned for protection to secular and ecclesiastical authorities: kings, bishops, and other rulers and churchmen in their own jurisdictions were asked to grant the right to print particular titles to named individuals. These printing privileges, as they are usually called, are first found in Venice in the later fifteenth century. The first of them was granted in 1469 to John of Speyer, the man who introduced printing to the Republic. Speyer was actually given a monopoly on printing in the city; later grants were for individual titles or groups of books and were sometimes time-limited. The Venetian example was soon followed by the kings of France. The earliest English examples date from the reign of Henry VII (1485–1509), when he appointed a king’s printer who had the unique right to print certain sorts of books.

There were various motives for these early grants. Sometimes it was certainly an attempt at censorship, by controlling what could be printed and limiting the right to print to those who conformed to the requirements of the state or the Church. Sometimes it enabled the authorities to put into print essential documents that were to their own benefit (such as laws and service books) and to encourage desirable publications. This was one of the functions of the king’s printer in England and the holders of similar offices in other countries. When Oxford and Cambridge universities were given the right to operate presses in the late sixteenth century, there was at least a tacit understanding that they would print and publish learned works which might not otherwise find an outlet. The link between permission to print and the right to print is perhaps best expressed in the Latin formula which is still used by the Roman Catholic Church:
nihil obstat
(nothing obstructs, i.e. there is nothing in the content to which exception can be taken) and
imprimatur
(it may be printed, i.e. permission is granted to a publisher to produce an edition). In different ways, and with very different emphases, the same distinction applies widely.

Whether intentionally or not, commercial benefits also flowed from the grants. The privileged printers had a
de facto
monopoly in terms of their grants. This was territorially limited, in the sense that it applied only in the jurisdiction in which the grant had been made, but within that territory it was absolute and the whole power of the state or the Church was available to support it and to punish any infringements. The system of printing privileges spread, in various forms, across the whole of Europe as the art of printing was disseminated between 1450 and 1550. It established the basic principle that the right to print a particular book, or category of books, could be granted to a named individual or organization.

By the middle of the sixteenth century, however, another development was beginning in England which was to have profound consequences. It arose out of the peculiar circumstances of the English book trade, which was noticeably insular. From the beginning of printing in that country, books in the English language were important and soon became predominant. Until well into the seventeenth century, learned works (still largely in Latin) were imported rather than produced domestically: the market for them was too small to sustain an independent publishing trade. The English language itself, however, was almost unknown outside the British Isles, and was by no means universal even there. But there was a vibrant national literary culture, and an increasingly strong sense of national identity which was closely related to the language and to a growing perception of its equality of status with Latin and French. The English book trade was both the beneficiary of linguistic nationalism, and one of the means for creating and sustaining it. The market, however, was limited, and competition was intense. After the middle of the sixteenth century, printing was almost entirely confined to London; the few exceptions were a handful of surreptitious presses and the university presses which were of no real commercial significance. The English book trade was therefore geographically, linguistically, and culturally very narrowly focused.

After 1557, the freemen of the Stationers’ Company had an effective monopoly of English printing. There was an understanding, which soon became a formal requirement, that no more than about twenty master printers would be licensed at any one time. All books had to be licensed by the ecclesiastical or state authorities before printing; the Company was required to ensure that nothing was printed without a license. Stationers gradually evolved their own means of working together which allowed them to compete commercially in this restricted environment. The Company instituted the practice of recording licenses and licensees in its own records. It is not clear exactly when this began, but the earliest surviving documents are from 1576, and thereafter the sequence is continuous. The document itself was known to contemporaries as the “Entry Book of Copies” and to later scholars as the “Stationers’ Register.”

The Register records the fact that a named member of the Company had the right to print a particular book, and that, to the best of the knowledge of the Company’s senior officers, he (not she until much later) had obtained the appropriate permission from the licensing authorities. From there it was but a short step to formal recognition that the permission was a negotiable commodity. Within a decade, “rights in copies” (derived from the phrase “printer’s copy,” meaning the manuscript used by the typesetter) were being bequeathed, inherited, bought, and sold. The transfers of ownership were duly recorded in the Register. By the turn of the seventeenth century, the concept of copy ownership was well recognized within the London book trade. It was also becoming increasingly complicated. Some copies were jointly owned by two or more booksellers. Some booksellers owned many copies. The Court of Assistants, the self-electing oligarchy which ran the Stationers’ Company, spent increasing amounts of time ruling on disputes between members about copy ownership and thus began, probably unwittingly, to develop some general principles and rules to make the system work more smoothly.

The authority of the Stationers’ Company as a trade guild was reinforced by the authority of the state. There is still some scholarly controversy about precisely how this relationship worked and what motivated the various parties, but the consequences of it are clear and important. It was in the interest of the crown and the Church that all books should be licensed before printing. Between 1558 and 1640, the licensers were usually the bishops or other clergymen acting on their behalf. It was therefore necessary to maintain some sort of record of what licenses had been granted and to whom: this record was the Stationer’s Register. It was in the use of the Register for their own purposes – in which the authorities had little or no interest – that the Stationers laid the foundations for the development of the purely commercial rights which were to evolve into copyright.

These English developments were fundamentally different from what was happening on the continent, and indeed in neighboring Scotland, where licensing by the state or the Church was the sole source of rights, and continued to be essentially a mechanism for the control of content. In England, where formal censorship of content usually had a fairly light touch, the commercial aspect of rights in copies became more important. This began to raise some other issues, as early as the late sixteenth century. Most fundamentally, there was the question of who created what everyone agreed was clearly a piece of property. The answer ultimately could only be that it was the author, and indeed we see glimmerings of the concept of authors’ rights (although not the term) in the first half of the seventeenth century. In the mere act of paying an author for the copy, the bookseller (to use the normal contemporary term for what, after about 1820, was called a publisher) was acknowledging the origin of the property which was being acquired.