Piracy and Copyright Challenges in 1841 Mirror Those of Today

Technology has come a long way since 1841, but the copyright debate at the time was strikingly similar to what we're witnessing today. 170 years ago a new copyright bill was being discussed in the United Kingdom, one that would extend the rights of book authors to sixty years after their death. While some favored the plan, some feared that this lengthy "copyright monopoly" would only succeed in increasing piracy,

thomasDuring the first half of the 1800’s a new technology was threatening the livelihoods of book authors.

The printing press.

To deal with the challenges at hand, Sir Thomas Talfourd drafted a new bill under which the copyright term for books would be extended to sixty years after the author’s death.

For years the bill was heavily debated in the House of Commons, and after it failed to pass in 1837, 1838, 1839 and 1840, it was once again brought up for a vote in 1841. That year the House witnessed one of the most intriguing standoffs in copyright history, and one that is still very relevant today.

On the one side there was Sir Thomas Talfourd calling for a lengthy extension, and on the other was Baron Thomas Macaulay arguing that this would be a dramatic mistake. On February 5th 1841 the House of Commons gathered to vote on the bill, but not before Macaulay gave a final speech.

Below we will accentuate a few critical paragraphs from that historic but forgotten speech, most of which are still very relevant today.

“It is painful to me to take a course which may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will add, to oppose my honourable and learned friend on a question which he has taken up from the purest motives, and which he regards with a parental interest.”

“These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full consideration, satisfied that the measure before us will, if adopted, inflict grievous injury on the public, without conferring any compensating advantage on men of letters, I think it my duty to avow that opinion and to defend it.”

Above is how Macaulay started his argument, addressing the House of Commons, and his “honourable friend” Sir Talfourd in particular.

“I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines.”

“Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

Macaulay argued that copyright is a monopoly by definition, and that while authors should be compensated for their works, a copyright term of sixty years after the author’s death would do more harm than good.

“Now, I will not affirm that the existing law is perfect, that it exactly hits the point at which the monopoly ought to cease; but this I confidently say, that the existing law is very much nearer that point than the law proposed by my honourable and learned friend. For consider this; the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration.”

“A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible.”

Baron Macaulay then went on to argue that the extension would offer very few advantages for the authors themselves. On the other hand, he explained that these restrictions would do harm to the public’s access to classic works.

After giving various examples of the extension’s potentially negative effects, Macaulay closes with the theory that the Act would in fact change the meaning of copyright to the general public.

“I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind.”

“Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains.”

“No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot.”

It could even make piracy morally acceptable.

“On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim’s Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress?”

“Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions.”

“The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.”

Fast forward 170 years and politicians are still debating over the same topics.

The language is different, the players have changed and so has technology, but in essence they deal with the very same issues. To a certain degree Macaulay predicted how the public’s opinion towards piracy would be hindered when more restrictions are put into place. This is something we still witness today.

In 1841, Macaulay’s speech made quite an impression in the House of Commons. The Copyright bill was rejected by 45 votes to 38, and a year later it finally passed as the Copyright Act 1842, without the sixty year extension he argued against.

Baron Macaulay’s critique on the lengthy copyright extension was at the foundation of copyright law in the U.K. and U.S. for decades, until Walt Disney came along.

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