Excerpts from a lecture at the Swedish Librarian Society's Conference on Copyright in Örebro, September 25, 1998.
Will copyright disappear?
A prerequisite for there being any meaning in the concept of copyright is, of course, that there is a clearly defined author and a clearly definable work - as well as some reason to regulate and define the relationship between them on the one hand, and potential users of the work on the other.
Auctors or creators have, of course, existed for as long as people have been around. In a broad sense, creative work has been going on for many thousands of years. But there are, of course, big differences between intellectual products such as cave paintings, nifty inventions to make a plow a better tool than it was before, medieval vagrant poetry, tabloids and Hollywood films.
Making a broad generalization, once could say that during the era of handwritten documents, both in terms of text and music, the compiler had a completely different role than today.
Handwritten books had many layers and different authors behind them, and it was not always so clear as to who did what as with today's publications. Sometimes it was apparent that a work was a kind of anthology, sometimes the texts of several authors were hidden behind a single author's name. It was commonplace to write, mixing one's own thoughts with borrowed ideas. When copying books, scribes often added their own comments or skipped over items that they did not like or found less important. There was absolutely no certification of accuracy, either from those who had written the book, those who copied it or from any publisher. We can be glad, however, that there was as much copying of other people's works as there was, since the writings of many authors have been lost and remain only as copies.
Conditions improved in many ways with the art of printing books. More copies made the contents less vulnerable. If a library burned down somewhere, an exact copy was, perhaps, preserved somewhere else. Now, the edition had become the constant, which, from the standpoint of authorization, was a great improvement over the past, when the only constant was each individual item for itself. This paradigm shift did not occur overnight, however. Just as it is impossible to digitize all books for electronic publication today, not all previously handwritten texts were published in printed form. Handwritten texts remained very important for a long time after Gutenberg's invention.
Printed books did not immediately become the artifacts and, above all, the products we view them as today. Typographically, both handwritten books and the first century of printed books retained many of the traits of the culture of oral tradition. Texts did not appear as they do today. Paragraph division was not done in the same way and headings and titles were not given the headline articulation so familiar to us today, that of delineating important items with larger font sizes and so forth. It is quite common in old books to see that the largest word is, for instance, the definite article.
"The boke named the Governour, devysed by syr Thomas Elyot knight", publ. 1531, here in an edition from Thomas Berthelet, London, 1534. Notice that our convention of titling books did not exist - here the book title informs us that it is giving the book a particular name.
John Locke was very concerned that the flow of the word of God would be corrupted if Biblical texts were broken up into chapters and verses. (This was, in fact, the beginning of a logical, structural division of texts which one could, perhaps, say has culminated today in our SGML notation and other meta-information.)
Music was also often dedicated to some sovereign - if not to God himself, of course. Already far back into antiquity, it was commonplace to set new texts, contrafacta, (lit. imitations, counterfeits), to borrowed melodies for hymns and other uses. It was, no doubt, practical to only have to remember a more limited body of melodic material since musical notation had yet to be invented. With the advent of musical notation and, above all, printed music, it becomes possible to talk about fixed musical works with a greater degree of authority. Many worried that the music would become stale. Still, during a couple of hundred years, musical notation merely remained the starting point for the variations of the interpreter. This attitude is of interest when discussing the integrity of a piece. At that time, it was inconceivable to think that it could be regarded as a violation to add one's own embellishments to a composer's work. That was, in fact, the whole idea - an integral part of the performance. It is interesting to consider the distinction between a more fixed structure and a more fluid one, subject to reinterpretation at every performance, when discussing modern ideas such as publishing individually tailored excerpts from a database. With musical notation and printing, music found a whole new means of distribution. It could be sent to new places in a virtual format, without having to be passed on by one musician playing it for another.
At that time, it was inconceivable to think that it could be regarded as a violation to add one's own embellishments to a composer's work. That was, in fact, the whole idea - an integral part of the performance.
The material used in early polyphonic music was often based on a fixed melody, a cantus firmus, which was borrowed from other composers or which existed in the public domain. The boundaries here are somewhat fluid. There are a number of simple song melodies of this type, that were reused over and over again - such as L'Homme armé, Je en demande, Fortuna desperata - which often gave their names to the entire mass. Corelli wrote the La Folia theme around the year 1700, which subsequently became one of the most widespread melodies in the world found, for example, in the Sinclair tune and in Brahm's Fourth Symphony.
If we imagine ourselves living in the age of eclecticism today, it was probably nothing new for some musical scribes who did like their colleagues who wrote texts - to create pseudo-masses, where they took polyphonic settings from various sources - one for Gloria, another for Sanctus and a third for Agnus dei, and so forth.
But what about copyright? When did people start to take an interest in such things?
Copyright protection, as we view it, could not occur prior to the invention of printing. It was simply not worth attempting to achieve economic benefit out of illegal reproductions - copying by hand was too slow, mass production was required for that.
Patents did exist, however, and early ideas regarding copyrights for literary works were similar to those. Over the years, there would be many lively discussions as to whether the ideas behind a work could be protected, or only the form which those ideas took in a specific work.
Copyright came about as a weapon used by London book sellers in their fights with competing booksellers in rural England during the 1600s. A bookseller or printer aspiring after exclusive publishing rights had to have a clearly defined contracting party, which could only be the author. Thus, the view of intellectual property was finally focussed upon the actual creator of the intellectual content. In 1709, England wrote its first copyright law.
In France, copyright also came about as the result of competition between the capital and the countryside. The French copyright law was enacted in 1793. But already in 1777, in other words prior to the revolution, an interesting law had been passed which decreed that certain classic literary works, where the publisher's privileges had expired, were considered to be in the public domain. Anybody who upheld certain requirements to be faithful to the original work, could publish it authorized by a so called "permission simple". Paris booksellers who had been able to continually renew their licenses could no longer do so, and as a result they lost many publishing rights to booksellers and printers in rural areas. This was, in fact, in itself a blow against the old order, thus having a certain significance for the revolution. In Sweden, the rights of authors were first legislated in 1810, one hundred years after England.
It is interesting to observe that the various words for copyright are based on different aspects of the concept. The English word 'copyright' focuses on distribution, and on reproduction, while 'upphovsrätt', 'Urheberrecht' and 'droit d'auteur' refer to the author. There is an implied inclination towards the integrity of the work and its creator.
Similar to the idea behind "permission simple" was the idea that important societal interests were stimulated by art and science, and that unnecessary hindrances for this influence should not be imposed. Thus, an author's rights did not include translation rights. Anyone was free to publish a translation, a holdover from the time when a text was viewed as just one of many possible forms that an idea could embody. Ideas could not be monopolized, only their expression - and a translation was a different kind of expression.
Long into the 19th century, England and Italy had the right of expropriation for out-of-print works which had not been recently reissued as new editions, provided they were considered to be beneficial to society. This is an interesting concept considering the battle over Hitler's Mein Kampf last year and Bavaria's attempt to use copyright as a tool for censorship.
One question we need to ask, is whether we are moving towards increased freedom of information, where copyright will either completely or partially crumble away, or if we are moving towards increased information protectionism, where each and every idea will be jealously guarded. Another question is whether we will come to hold a more patent-like way of thinking, even regarding artistic works.
Should I hazard a guess, I suspect that copyright will probably be strengthened over the short term, especially the moral rights and the integrity aspects, which are of incredible importance in our nebulous electronic media. These can be of great help when it comes to maintaining the identity and authority of individual documents. Taking a longer term perspective, say 30-40 years, things become much less certain.
I believe that the tools available for maintaining the artist's supremacy over his or her work will become infinitely flexible.
Copyright will probably remain, but in forms that today we cannot envision. Computers have a tendency to encourage a need for more control in people, and I do not think that the needs of authors to control their own creations will diminish. On the other hand, I believe that the tools available for maintaining the artist's supremacy over his or her work will become infinitely flexible. Today, a work is either protected or it is not. More than likely, different forms of copyright will be created, with varying fees for different occasions and different audiences. A work could, perhaps, be put into revision mode, temporarily toning down the moral rights and welcoming general input.
Maybe copyright will have to be shared with those who have created certain programs, plug-ins or AI tools that help create, for instance, a text. Considering that such AI tools could be a direct reflection of a certain person's intellect or taste, they would need to be defined in terms of copyright, according to the old way of looking at things. In the future, the creation of a work might be just as complicated as the citrus acid cycle is in a person's metabolism, where lots of minerals and enzymes work together in a series of nine different reactions to make acetic acid out of fat and carbohydrates. The question, then, regarding artistic work is this: will we really want to utilize computer technology to keep track of how many cents everyone involved should be paid, or will we just don't bother with it?
Translated from Swedish by Henrik Nordström.