Copyright has only been around for five minutes. Before the various copyright acts, which is to say before the eighteenth century, there was no great concept of ‘copyright’ or ‘intellectual property’ but neither was there any shortage of creative writers. Many millenniums ago the writer of Ecclesiastes drily observed: “Of making many books there is no end.” and that’s how it’s been ever since. And yet it would be naïve to think that earlier writers had motives any whit purer than later writers. In addition to intellectual curiosity and a desire to please their fellows there was always a lust for money, fame and power and the puissant pen was able to secure all these and even occasionally to trample a kingdom down. In this respect nothing changes.
We should be grateful to lawyers. Their work continueth. They keep us from living in the world that Hobbes described where there would be the war of everyone against everyone. If lawyers have a fault though, it is that they do love regulation. When the countervailing forces are weak there are regulations concerning all things. One can have too much law.
Creative writers and people who publish books on the other hand might be thought to tend towards the anarchic and their greatest scorn and anger to be reserved for any form of censorship whatsoever. Certainly they don’t want their own writings to be censored nor do they like to be interrogated about their own sources. At the same time they, quite reasonably, want nobody else to make money from their ‘original’ words or thoughts unless they get their cut.
This is a paradox that has always created tensions which a history of legislative initiatives has done little to relax. Although, good luck to them, some authors and publishers have found the pot of gold at the foot of the legal rainbow many others have had the Jarndyce and Jarndyce experience and, anyway, what sane man wants to litigate if he can help it? The story of Charles Dickens and the Americans is somewhat heuristic. I shall tell it my way. It is more truthfully told by Matthew Pearl but please accept this as a mere parable.
After his early years in poverty Charles Dickens was one of those Victorian writers who was making good money out of his works. The nineteenth century revolution in printing methods meant that his books were selling like hot cakes throughout the kingdom and he naturally liked to see all those pennies rolling in. Frustratingly, however, there was that other English reading population across the Atlantic. The Americans were enjoying Dickens too. His books were being widely published and printed and read and Charles was not receiving a penny. He was suffering from the most blatant appropriation of his work. This of course was because there was at that time no international copyright agreement in force and the libertarian, tax hating Americans saw no reason to pay English publishers and authors for words on pages that could just as easily be printed in America. All that was required was a little free enterprise or, as we might say nowadays, shameless piracy.
Dickens no doubt lost sleep over these many happy American readers who paid little for their books and for whom books by English authors were particularly cheap to buy. The Land of the Free began to look to him like the land of the freeloaders. He cried foul and campaigned for international regulation. But at some point over the years he began to take the point that the dissemination of his work in America was doing him no harm at all in terms of reputation and, critically, that cheap books in America were increasing his potential earning power as a popular visiting reader. When, in the 1860s, he did tour America to give readings from his books he received so warm a welcome and so much faster money than he had ever earned as a writer that he returned home thinking much more positively about America and the Americans.
This story reminds us about the essential freedom of creative writing. Once a work escapes into the world it leads a life of its own. It may die but it may flourish, increase and multiply, pop up in strange places, it may mutate. Writings turn into lecture tours, verses turn into songs; novels are adapted for the stage, epics become movies; oneliners become idioms; work is plagiarised, parodied, translated, quoted, improved upon… The list is long and we live in an age when it seems to lengthen daily. What has once been created can be created again and again to the end of time by the energetic input of intelligent readers.
Regulation of this glorious chaos is bound to be attempted but we can expect such regulation to be untidy and unsatisfactory. Where there is too much regulation, too much recourse to ‘law’ and where there are petty rules that cannot practically be enforced the freedom of the whole creative process suffers. For the individual it is perhaps sometimes best to move, as did Charles Dickens, from fulminating against perceived injustices to accepting this vibrant, exciting, unregulated world of written words and thinking very hard how to exploit it.