We need copyright to prevent censorship and promote freedom

Much of the debate surrounding the current Digital Economy Bill focuses on the dissemination of popular culture and the mechanisms to make that culture available – music, film and software. However, there is another business that will be profoundly affected by these proposals – academic publishing. These are some of the world’s oldest businesses – Cambridge University Press was founded in 1534 and Elsevier, the biggest academic publisher in 1580. And to understand the significance of copyright to this industry (a major contributor to the UK’s economy) we must go back to the origins of copyright law in 1709, The Statute of Anne.

Although the official title of this act was, “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", in truth it was intended to curb the claim of perpetual copyright claimed by publishers under common law (since the previous provisions – registration with the Stationers’ Company - had lapsed). However, the two sources of copyright provision – the 1709 Act and common law – continued side by side up to 1774 when the House of Lords ruled perpetual copyright invalid (Donaldson vs. Beckett). This ruling included this important definition of ‘property’ from Sir Peter Wedderburn, the Solicitor General:

“Literary property had, by those who spoke before him, been said to be so abstruse and chimerical, that it was not possible to define it. The interpretation they had put upon the word, 'property' was, that it implied something corporeal, tangible, and material... He begged leave to differ from this opinion, and to point out how common it was for terms to be misapplied as to their import. The word 'property' had, by the ablest writers, been called 'jus utendi, fruendi, disponendi;' it was therefore. evident that any idea, although it was incorporeal in itself, yet if it promised future profit to the inventor of it, was a property.”

Plus the scoping to the bounds of copyright itself:

“It was absurd to imagine, that either a sale, a loan, or a gift of a book, carried with it an Implied right of multiplying copies; so much paper and print were sold, lent, or given, and an unlimited perusal was warranted from such sale, loan or gift, but it could not be conceived that when 5s. were paid for a book, the seller meant to transfer a right of gaining 1001.; every man must feel to the contrary, and confess the absurdity of such an argument.”

And if a copyright is a property, then we have to recognise the right of that property’s owner to make use of it as he wishes – including the right to sell. Or as we know with academic publishing to give away in exchange for editing, peer review and dissemination – plus of course protection of the author’s interests vis plagiarism. This is the publishing process and it is essential to academia however funded. Under the established – copyright protected – model there is no cost to the author as the subscriber pays. There are open access models based on authors paying for publication but these only work where there is significant and substantial public funding available (e.g. PubMed).

This is an important debate – personally I support only some of the campaigners arguments but the manner in which the bill has been captured by producer interests should concern us (although phrases like “Formula One” and “fox hunting” do spring to mind at this point). Let’s be clear, however, that despite the wonders of the web the publishing process remains important – maybe not to a new Indie rock band from Scunthorpe but certainly to the advancement of academic understanding.

If we enter into a free-for-all on copyright we run the risk of killing the goose laying the golden egg – and I don’t mean Bono creaming off a few more millions for crappy stadium rock. Without copyright there is no basis for publishers to operate – it is a simple as that. We return to the situation prior to the 1709 Act where protection is fought for in the Chancery Court or using common law or where there is protection for some censored publishing but not for uncensored publishing. And, if we deem copyright to be property, we have a duty as a society to enforce the rights to that property whoever they may be held by.

The question for Governments should be to ask what is appropriate, what can be enforced and where the bounds for the protection of copyright actually lay. In my view, the onus should lie with the owner of the copyright and his agents to take action. Government should make it possible for such action to be taken but not through the agency of a Whitehall Department.

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