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Welcome to AccelPro IP Law, where we provide expert interviews and coaching to accelerate your professional development. Today, we are featuring a discussion with David Bellos and Alex Montagu about the history of copyright protection.
Bellos is a professor at Princeton University with a distinguished background as a translator and biographer. Montagu is a founding Partner of MontaguLaw, a law firm that focuses primarily on intellectual property law, international commercial transactions and new media commercial law. The pair recently released a book, Who Owns This Sentence? A History of Copyright and Wrongs, which dives into the history of copyright and how it impacts our everyday lives.
Bellos notes, “From the beginning, copyright had this tendency to spread, creep, and crawl, and it extended in dribs and drabs from books to engravings to sheet music—sculptures, the visual arts and even textile designs like tea towels in the Calico Printers’ Act. It had a tendency from the start to get bigger and bigger. This started happening long before there was any new media or the internationalization of copyright and the extension of the rights that it conferred, like translation and adaptation. All this precedes the invention of anything that you might call ‘new media.’”
Montagu adds, “In the 17th and 18th century, these issues were debated publicly. It was not an issue that was limited to a niche circle of lawyers and lobbyists behind the scenes, because issues that affected people were debated by philosophers–John Locke, Condorcet in France, people like that. Today, that's not what we're doing. This is very much a niche issue that, if debated at all, is debated in the context of the United States Copyright Office or the World Intellectual Property Organization in Geneva. There are very few people involved. And we argue that this is actually touching everybody, so we want to open up the discussion.”
Listen on Apple Podcasts, Spotify and YouTube.
Interview References:
David Bellos’ Princeton University French and Comparative Literature profiles.
Alex Montagu’s MontaguLaw profile.
1:04 | Bellos, David and Montagu, Alexandre. (2024). Who Owns This Sentence?: A History of Copyrights and Wrongs. W. W. Norton & Company.
15:40 | Google LLC v. Oracle America, Inc., 18-956 (2021).
Supplemental Materials:
A Brief History of Copyright in the United States. US Copyright Office.
Gordon, Anna. Mickey Mouse Is Now in the Public Domain After 95 Years of Disney Copyright. (2 January, 2024). Time Magazine.
TRANSCRIPT
I. COPYRIGHT ORIGINS
Neal Ungerleider, Host: Can you tell us about Who Owns This Sentence? and what the book covers?
David Bellos: It's a book about copyright and where it came from. It’s about how it grew, how it spread all over the world and into every corner of our lives today. It covers ideas about authorship from ancient Greece right down to the U.S. Supreme Court by way of Renaissance Venice, 18th century London, 19th century Russia, the European Union, and it goes to considerable lengths to cover changes to U.S. laws that have taken place over the last 50 years.
NU: For the book's audience, which includes the general public, how would you explain that trademark, patent, and copyright are different things, even if they sometimes overlap?
Alex Montagu: There are three different protections offered by the law. We call them Intellectual Property and they're protections of intangible rights. Patents, for example, protect ideas and inventions and the term of protection is much less than copyrights. It's a 20 year term typically, and they require registration.
Copyrights, on the other hand, don't protect ideas. They protect expressions of an idea. You can have a great idea, but as long as it's not been fixed in a tangible medium, it's not protected by copyright. For example, a song and the score. The score is written down, fixed in writing, and this recording itself is protected by copyright. But the idea of a song, for example, is not protectable by copyright.
Trademarks are different again from the other two. They are identifiers of source. Anything that signifies source, where something comes from, who made it, who's selling it, who's selling the product or service, etc. For example, the name Coca-Cola signifies that what you're drinking was made by a particular company, Coca-Cola. Or the Nike “Swoosh,” that indicates that what you're buying came from Nike. And the importance of that is it guarantees a certain quality.
When you buy Coca-Cola, you know that you're getting Coca-Cola. And that's the protection that trademark gives you, and if someone else puts the label “Coca-Cola” on their drink, they're violating Coca-Cola's trademark rights.
Different protections can overlap, but they generally are very much in their own sphere. Where they can overlap, for example, is Disney. Disney has been in the news because the copyright on the earliest version of Disney’s Steamboat Willie has expired. In theory, people are free to copy that Mickey Mouse character, and others.
However, because Mickey Mouse also functions as a trademark, the character is under the Disney brand. Disney can continue to assert rights to that character, not under copyright, but under trademark. That's where copyright and trademark can overlap.
Another area where they can overlap is in the design of logos. A logo that is very elaborate, for example, is an expression of an idea. The graphic design of the logo is protectable by copyright, whereas the logo itself, to the extent that it signifies origin, signifies a brand and is protected by trademark.
There's overlap also where patents come in. For example, with software code. Software code is protected by copyright and that's something that is very much discussed in our book. Computer programs can be subject to patent protection, depending on what the program does and whether the program does something new and non-obvious.
DB: Our book is essentially about copyright. We do have quite a few things to say about patents, partly because patents and copyright have a common early history in 15th century Venice.
As Alex said, there are various areas where patent and copyright can overlap or collide. But our general approach is that trademarks and patents are relatively well regulated things that are not subject to the kind of hypertrophy and overblown growth that we see in copyright. Our focus is on copyright.
NU: Can you both tell us a little bit about those common roots in Venice?
DB: Venice was a wealthy trading city in the 15th century. It did a lot of trade with the Middle East, with the Levant. It was the entrepôt, the distribution hub for things of great luxury that couldn't, at that time, be made in Western Europe, like colored glass.
The Venetian senators understood that they could become even more wealthy and prosperous if instead of importing these things from Aleppo and Alexandria, they actually got craftsmen to come and live in Venice and make them there. And so it operated a very open-borders policy to attract what it called “ingenious and clever people” to come and make the Republic of Venice even more glorious than before.
With these Eastern artisans came an idea that they would be protected by a monopoly for a certain number of years on their trade so that they couldn't be easily copied and knocked off by locals. The length of those privileges for foreign craftsmen were strictly limited to seven years, which was the length of an apprenticeship. So a glassmaker from Aleppo could come and set up his workshop and for seven years he would be protected whilst local lads learned the trade. At the end of seven years, the privilege would vanish.
That's the circumstances in which a pupil of Gutenberg's from Germany, called Johann of Speyer, came to Venice and set up a printing press in Venice. Venice extended to him that kind of privilege, though the first privilege granted to Johann of Speyer was only five years. That privilege of printing books in Venice allocated to a single man is, in a sense, the origin of copyright. Just as the system itself is the origin of patents.
That's a key point. The two ideas of privilege for books, on the one hand, and privilege for trades and crafts, on the other, didn't fully separate out for a few centuries.
The privilege idea was instantly copied wherever the printing press went around Europe, in Spain, England, France, and Germany, and it spread very quickly. By the end of the 15th century, there were presses in almost all major European cities. And in all cases, they adopted the same kind of regulation as in Venice; that someone would be given the privilege of printing books there. Then quickly it developed so that different printers could operate, but they had privileges for different kinds of books, like law books or medical books. By the 16th century, it was down to privileges for individual books.
AM: To clarify something here, when we talk about a privilege, it's a precursor to copyright. But it's a very different concept to what we have today in terms of ownership of copyrights or even patents. It was a privilege that was granted by a royal charter, by the crown and in Venice by the Senate, which could have been taken away.
It was not a property right in any way. It was a privilege. You had a privilege to do something that was granted to you by, should we say, the State.
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II. THE EVOLUTION OF COPYRIGHT
NU: Who Owns This Sentence? talks about the birth of modern copyright in the 18th century. How has copyright evolved since then, and how has the rise of new forms of media changed how copyright holders view copyright?
DB: Copyright arose in the first instance in the story that we tell, in order to limit the privilege of a small and wealthy group of publishing families. Printing was largely hereditary in early modern England at the end of the 17th century and the beginning of the 18th.
Its main effect was the creation of a large and broad-spreading public domain. It didn't really take hold completely until a court case that was decided in the House of Lords in London in 1774. That court case confirmed that the purpose of copyright was to create a large public domain and that proprietary rights in books only extended for 14 or 28 years. If the author was still alive at the end of the first 14, he could renew it.
When you think about it, that's actually quite a small proportion of everything available, amongst the fruits of human creativity—most of which had the form of books in those days.
AM: We talked about privileges and how they were granted for a term of seven years. When copyright arose in England at the beginning of the 18th century, there was only one company that had this privilege. It had had this privilege for over 150 years, since the reign of Queen Mary.
It was The Stationers’ Company. It was one company, and it had this royal privilege. It was the only company, basically, that authorized the printing of books. And that privilege expired in 1695. It wasn't a limited time privilege, as opposed to what we were talking about earlier in terms of the printing press privilege in Venice, or the stained glass windows.
It was a very long-term privilege, which expired and then led to this law. This first copyright law, the Statute of Anne, was enacted in 1710. As David was explaining, the intent was to limit the term of protection to 14 years. That was what the statute said, but it wasn't until this lawsuit in 1774 that that intent was actually clarified.
There were a lot of arguments that, in addition to what this statute says, by common law the publishers had copyright in perpetuity. The Stationers wanted to say that, “Well, our privilege continues, even though it's been revoked. It continues under common law, under the common law of England.” That argument was defeated in 1774. New copyright law, as we know it today, was really born in 1774.
DB: Except not as we know it today. Perhaps as we would like to know it today.
AM: That’s right.
DB: From the beginning, copyright had this tendency to spread, creep, and crawl, and it extended in dribs and drabs from books to engravings to sheet music—sculptures, the visual arts, and even textile designs like tea towels in the Calico Printers’ Act. It had a tendency from the start to get bigger and bigger.
All this precedes the invention of anything that you might call “new media” and the internationalization of copyright and the extension of the rights that it conferred, like translation and adaptation.
I personally do not buy the oft-touted argument that new media has forced the law to catch up with technological development. On the contrary, it's rather the opposite. New media, once it was invented, saw a great opportunity in existing copyright law, and its creators scrambled to organize their businesses so they could exploit it.
Of course, their lobby groups have also since then succeeded in lengthening, strengthening, and broadening the capacity of copyright to create rents. I think one of the things you will learn from our book is that those lobby groups—which everybody's heard of—consistently exaggerate the inadequacy of the current laws so as to amend them in their own favor, and their quite specific group favor.
They’ve been horribly successful because the result is that there's almost no public domain left. A law that in its first iterations, and its first great expansion in 1774, created a large public domain has been shrunk so that there is almost nothing created by human minds over the past roughly 100 years that is now free for people to use. Not just to copy, but to use in any way. To translate, adapt, sing, read aloud… anything.
That's really the direction of travel. It's not just our book that says so. It's very demonstrable that that is what has happened.
AM: What's happened is that copyright has extended in two directions in subject matter.
In 1774 it was just limited to books. Now it covers everything, including computer code and other things like APIs which were the subject of a major lawsuit between Oracle and Google.
The creep has also been in the term. It's a very long term. It's the life of the author, plus 70 years. That's likely to be well over 100 years after the creation of the work.
Our book covers this period leading up to the abolition of the privileges in the 18th century, the enactment of the Statute of Anne; the Donaldson case that established modern copyright in 1774; then, the period after, leading up to modern times where this copyright creep occurred.
We show not just how it happened and how haphazard it was, but what it's led to. It describes, perhaps, a world that the people that decided that Donaldson case might not have quite envisioned was one that they wanted for copyright.
What they wanted was a strong commons, a strong public interest in affordable books, at the time. This translates today to affordable everything because copyright is now the underlying basis for everything. And it now pushes up the prices of everything so it becomes more expensive.
NU: In an ideal world, what direction would you both like to see copyright law evolve in?
AM: One thing that we say in the book is that in the 17th and 18th century, these issues were debated publicly. It was not an issue that was limited to a niche circle of lawyers and lobbyists behind the scene, because issues that affected people were debated by philosophers. John Locke, Condorcet in France, people like that.
Today, that's not what we're doing. This is very much a niche issue that, if debated at all, is debated in the context of the United States Copyright Office or the World Intellectual Property Organization in Geneva. There are very few people involved. And we argue that this is actually touching everybody, so we want to open up the discussion.
The second thing we're saying is: Is this length of copyright justified? Life of author plus 70 years, is that a length that is desirable? It's a question that we would like to pose. Is the extension of copyright to everything also desirable for such a long period of time?
The discussion is coming to a head in terms of the litigation over AI right now. In order for AI machine-learning to happen, they have to train. It's called training data. AI learns by being exposed to whatever it is it's learning. If it's learning to recognize a cat, it needs to be exposed to millions of images of cats. If it's learning to perform a song, then it's going to have to be exposed to millions of voice recordings.
Now, everything that it's going to use is likely to be in copyright. It's very unlikely that the training data is going to be over a hundred years old. The question is whether or not AI's use of this training data is infringing the copyright of all these people.
Those are the ways the argument is coming up. But the deeper and bigger argument here is, how do we benefit as a society? Where is the interest of the vast majority of people? Yes, we want to have a strong copyright law in order to encourage creativity, but has copyright law done that?
Where the median income of someone who lives by the pen in the U.S. is $17,000 per year, has copyright achieved that goal of encouraging creativity? Would people not write and would artists not paint if the term of copyright were shorter?
Who is benefiting from this long term of copyright? Is it the individual artist or is it large corporate interests? Do we benefit as a society? Does that make things much more expensive?
Right now, there's a cost-of-living crisis where everything is more and more expensive, and one of the reasons is that things are protected by copyright and by intellectual property. That drives up the prices of many things, yet we don't discuss that. We don't discuss the cost-of-living crisis in these terms.
Our book does, it opens up all of these doors. A lot of the discussions that we have about these issues are legal discussions, as to who can do what. We open it up to a broader discussion where lots of people will tell themselves, Oh, I didn't realize that I was being affected by this. But I think everyone is.
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III. PATHWAY TO BOOK PUBLISHING
NU: I wanted to shift gears a little bit and ask about your careers. How did you both meet? Can you tell us a little bit about how you steered the book from the original idea to publication?
DB: Alex, who is the culprit for the whole adventure, is a Princeton alum. Because he's been a very successful Princeton alum, he ended up being a member of the Department of Comparative Literature's Advisory Council, which is an external body of well wishers who come and visit us every couple of years and tell us that we're doing wonderfully.
But he didn't say that. He came along and said, “Look, you really ought to be teaching copyright to students of comparative literature. Copyright is pretty fundamental to the writers and books that you're studying. Students really ought to know about how copyright engages with the history of Western culture.”
I'm a bit of a muggins and I thought, “Hmm, that would be interesting.” After much discussion and head scratching and going to the library, we put on a course jointly. We taught it together, we had some pretty nice students, and we felt very encouraged.
And then, Alex decided to move to London, so there was nothing for it. We had to write a book. Getting it published was different. I should say that my literary agent played a role.
Every book has a different story; pro captu lectoris habent sua fata libelli. None of them are quite the same. And in this case, I think all I can really say is that how we got it from being a project to a book is a combination of serendipity, old acquaintance, and sheer luck. Those are the three important factors.
NU: For the AccelPro community, what tips do you have for specialists and lawyers who are writing books for a general audience like these?
DB: I have six rules I teach my students.
One: Write shorter sentences.
Two: Cross out all those meta-discursive pieces of rubbish that somehow naturally spring up when you do your first draft. Just cross them all out. If it doesn't make sense when you cross them out, there's something wrong with your argument.
Third: Listen to your editor. Editors may be very irritating, but their advice has always got something in it that's worth listening to.
Fourth: Don't bother unless you really do have something to say.
Fifth: Don't try to be topical. The point of writing a book for the general public is to make your subject topical. It should be topical then, and not when you're writing it.
And last of all—and this is advice I have had from a very distinguished publisher over the years—is just be kind to your reader, but never underestimate her intelligence.
AM: I have to say that those rules would well serve any lawyer that's writing.
I'm a practicing lawyer. One of the most rewarding parts of this collaboration with David was how much I learned about history and where these laws came from. I think that's the case with almost all IP lawyers. We don't really pay attention to where something came from.
For me, it's made my practice more rewarding when I understand where the laws that I'm arguing, applying, advocating for, actually came from, how they arose. I think for other lawyers, they may find it a rewarding exercise to read a bit about it.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on February 29, 2024.
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