'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.
