26 October 2012


'The 'Capricious Privilege': Rethinking the Origins of Copyright Under the Tudor Regime' by Rebecca Curtin in 59 Journal of the Copyright Society of the USA (2012) 391 contributes to -
the revision of thinking on the origin of author’s copyright by examining the first grant of a printing privilege to an author in the sixteenth century, not with a focus on its value to the author, the humanist scholar Thomas Linacre, but rather on its value to Henry VIII’s regime. The privilege, which applied to a Latin grammar, served Henry VIII’s initiative to foster humanist scholarship in England. The privilege represents early recognition of the power of monopolies in printing rights to incentivize the creation of particular texts. The printing privilege arose when a convergence of factors began to change the economics of book printing, as both supply and demand for printed books increased. Humanist luminaries, like Erasmus and Linacre, created demand for new content from living authors. Yet, the patronage system that largely compensated these authors drove down the prices they were able to get for the sale of their manuscripts to printers and burdened them with obligations to patrons. A close-grained history of Linacre’s privilege, and new evidence in support of dating the privilege before 1517, suggest that Henry VIII used the privilege as a tool, costless to the fisc, to make the publication of Linacre’s Latin grammar textbook more profitable to the author, and thereby to promote an English brand of the New Learning that would increase the prestige of the crown. The advancement of learning has been at the core of Anglo-American copyright since its origins.
Curtin concludes -
Given the benefits on both sides, it is somewhat surprising that Linacre’s privilege did not create a large trend of authorial grants. As noted above, the printer’s privilege became the common form of the privilege. Authorial grants, however, continued to be made occasionally well into the seventeenth century. The kinds of works awarded authorial privileges varied widely, but, like the Progymnasmata, they tended to be basic teaching texts of some kind. Leo Kirschbaum has gathered many instances, including grants to: Thomas Cooper in 1563 for an English dictionary; Arthur Golding in 1605 for any of his works “considered to be beneficial to the church and commonwealth;” Minsheu in 1611, for the Guide into Tongues; Fynes Morison in 1617 for his Itinerary; Samuel Daniel in 1618 for his History of England; George Wither in 1623 for his Hymns and Songs of the Church; and Francis Holyoke in 1635 for a dictionary he compiled. These works all have in common a wide audience and a basic teaching function. The grant to Golding for works “beneficial to the church and commonwealth” would seem to sum up the initiative: the use of the author’s privilege was not for the “capricious” show of favor, but, intended at least, for the public good.
The benefit of the common good was the ancient basis for the authority of the Crown to create monopolies. When a printing privilege was struck down in court for the first time, it was precisely because the court could not understand how the monopoly, which was in playing cards, could be pro bono publico. Creatively, it was argued in favor of the patentee that cards themselves were damaging to the public because of the time and money wasted in gambling, and, therefore, limiting the right to print them to one man would reduce the supply of cards and therefore benefit the public, as the Queen intended. The defense for pirating the cards, however, successfully rebutted that argument by drawing attention to the basic functioning of a monopoly:
The Queen was deceived in her grant; for the Queen, as by the preamble appears, intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice of the weal public; moreover the Queen meant that the abuse should be taken away, which shall never be by this patent, but potius the abuse will be increased for the private benefit of the patentee, and therefore ... this grant is void jure Regio.
Without a credible argument that the monopoly would benefit the common weal, the privilege failed. The nature of the privilege as a legal instrument, strictly speaking, was never “capricious” as a matter of law, not even when exceptionally applied to authors. The privilege granted to Linacre was consistent with the common law underpinnings of monopoly grants. Linacre’s privilege clearly had as its goal the fostering of Classical education and the encouragement of the New Learning — a goal that benefited both the Crown and the common weal — and put the advancement of learning at the core of copyright’s origin in England.