Paperbacks were invented nearly 300 years ago by a Scot looking to exploit loopholes in copyright law. Photo: Garry Knight

As Commerce and Consumer Affairs Minister Jacqui Dean announces a review of the 1994 Copyright Act for the digital age, it’s worth considering what copyright is and where it comes from, writes Thomas Coughlan

The cut-price paperback was not, as the likely apocryphal story goes, invented in 1934 by a bored publisher waiting for a train, but two hundred years earlier by a canny Scottish bookseller who exploited inconsistencies in the laws of England and Scotland to build one of the first international publishing empires. The intellectual fallout from this period forms the backbone of New Zealand copyright law and that isn’t necessarily a bad thing.

In the 18th century, publishing in England was controlled by a cartel of London booksellers. Though Parliament had passed the country’s first real copyright legislation in 1710, which appeared to limit copyright terms to a maximum of 28 years, booksellers in practice recognised perpetual copyright. It was not unusual for booksellers to claim a copyright in Shakespeare and Milton and defend those rights in court (as the infamous publisher, Jacob Tonson did).

In Scotland, which retained its own legal system following the 1707 union with England, there was no recognised copyright apart from the 1710 Act, which effectively gave Scotland a far shorter copyright term than its southern neighbour. On this basis, a group of renegade booksellers published cheap editions of books that had fallen outside the 28-year term and then sold them, first in Scotland and later in England too.

The books were wildly popular and not just in Britain. When Thomas Jefferson wrote a list of books essential to the foundation of a library for his friend Robert Skipwith in 1771, Donaldson was one of only a handful of publishers whose books Jefferson specifically singled out.

The literary standoff came to a head in three climactic legal cases fought between 1769 and 1774, which are still counted as among the most riveting in British legal history.

The first, heard in England, saw the London booksellers successfully defend their perpetual copyright. The Scots argued that copyright was a literary patent, intended to stimulate and reward innovation and invention by creating a monopoly that would adequately reward its inventor. However it was decided that the purpose of the statute was to reduce the period of monopoly to ensure that wider society might reap the benefits of the invention after its inventor had adequately profited from it.

If our copyright laws are to be made fit for purpose in the digital age, then they must truly reassert the rights of authors in the time of rampant social media piracy.

The London booksellers called out to Liberal philosopher John Locke to argue that copyright was not a monopoly, but rather an abstract form of property. Locke, in his Second Treatise on Government had written that when one’s labour was mixed with vacant land, that land then became a private property. An author was an intellectual labourer of sorts and therefore their intellectual labours should be recognised as intellectual properties. The statute was intended to limit certain rights, but not to extinguish the property altogether.

In 1773, the English booksellers tried to have this principle applied in Scotland and brought a case to the Court of Session in Edinburgh, which they lost. Scotland didn’t recognise the property right, only the 1710 statute. This case was climatically appealed to the House of Lords, which had jurisdiction over both Scotland and England.

The questions brought to the Lords and inconsistencies in the reporting of the case have made the history of this decision rather fraught. However, we do know that the Lords sided with the Scots in finding that the term was circumscribed by the 1710 Act, but it also upheld an important principle of the 1769 case, that copyright was a property created by an author’s labour, but one that would extinguish after 28 years.

From these auspicious beginnings, copyright became the cause célèbre of the British literary establishment. In the 19th century, Robert Southey and William Wordsworth drew deep from the well of authorial sentiment engendered by the insurgent Romantic movement to extend the copyright term to an author’s life and beyond. The Romantic idea of copyright inherited from the 18th century neatly correlated with Wordsworth’s understanding of his own creative process, which, in his words is ‘the introduction of a new element into the intellectual universe’.

In 1842 the bones of this law became the first New Zealand copyright law, which though replaced by more current legislation, is in principle what we have on the books today.

The terms of reference for the review of the Copyright Act take into account only the narrow, monopolistic view of copyright, stating that the law exists to balance competing imperatives of incentivising creation, and enabling easy dissemination and ‘follow-on’ invention.

This disregards the spirit of centuries of copyright law, which has authorship at its heart. In an age when large corporate monopolies like Google and Facebook exploit weaknesses in copyright law to profit from vast amounts of free content (so much that our two largest media companies perceive them to be an existential threat), surely there is no better time to reassert the primary right of the author in copyright law.

Whatever comes of this review, the most difficult, but potentially most rewarding review of New Zealand’s intellectual property laws is yet to come. The landmark WAI 262 report from the Treaty of Waitangi concluded that our existing intellectual property framework was woefully inadequate when it came to according Māori cultural creation broadly termed mātauranga Māori and Taonga outputs.

The 2016 MBIE report on Copyright and the Creative Sector, which will set much of the agenda for the upcoming copyright review, recommended a specific review based on WAI 262 that considered the recommendations in their own right, which is probably why the Copyright Act terms of reference make very little mention of Māori copyright.

The WAI 262 report was made in 2011 and though other aspects of New Zealand IP law have begun to respond to it, our copyright law has lagged behind. There is no question that responding to WAI 262 will be a mammoth effort — far greater than the simple adjustment of copyright term and ‘fair-use’ clauses the Government envisaged — but this could present the opportunity to be bold.

If our copyright laws are to be made fit for purpose in the digital age, then they must truly reassert the rights of authors in the time of rampant social media piracy whilst creating a truly decolonised copyright regime.

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