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II

THE EARLY HISTORY OF COPYRIGHT

In classic times

OUR traditions of the blind Homer, singing his Iliad in the multitudinous places of his protean nativity, do not vouchsafe us any information as to the status of authors in his day. There seems indeed to be no indication of author's rights or literary property in Greek or earlier literatures. But there is mention in Roman literature of the sale of playright by the dramatic authors, as Terence; and Rome had booksellers who sold copies of poems written out by slaves, and who seem to have been protected by some kind of "courtesy of the trade," since Martial names certain booksellers who had specific poems of his for sale. Horace complains that the Sosius brothers, his publishers, got gold while he got only fame - but this may have been a classic "author's grumble.” Cicero in his letters indicates that there was some notion of literary property, and it is probable that some kind of payment was made to authors.

The Roman jurist Gaius, probably of the second century, held that where an artist had painted upon a tabula, his was the superior right. And this opinion was adopted by Tribonian, chief editor of the code of Justinian, in the sixth century, and was applied in a modern question in respect to John Leech's drawings upon wood.

In the early Christian centuries, the monasteries became the seats of learning, and the scriptorium or writing room, in connection with the librarium or armarium, — the armory in which the weapons of the

Roman law

Monastic copyists

faith were kept, - was the work-shop of the monkish copyists, sometimes working as a publishing staff under the direction of the librarius or armarius as chief scribe. The first record of a copyright case is that of Finnian v. Columba in 567, chronicled by St. Columba Adamnan fifty years later and cited by Montalem- and Finnian bert in “The monks of the West." St. Columba, in his pre-saintly days, surreptitiously made a copy of a psalter in possession of his teacher Finnian, and the copy was reclaimed, so the tradition relates, under the decision of King Dermott, in the Halls of Tara: "To every cow her calf.” The authenticity of the tradition is questioned by other writers, but the phrase gives the pith of the common law doctrine of literary property and indicates that in those early centuries there was a sense of copyright. Monks from other monasteries came to a noted scriptorium where a specially authentic or valuable manuscript could be copied, and the privilege of copying sometimes became the basis of an exchange of copies or of a commercial charge. Finally different texts of the same work were compared to obtain a certain or standard text, and the multiplication of such copies became the basis of a publishing and bookselling trade, in secular as well as sacerdotal hands, the development of which is traced in detail by George Haven Putnam in “Books and their makers in the Middle Ages.”

This development is illustrated in the statutes of University 1223 of the University of Paris, providing that the protection "booksellers of the University” should produce duplicate copies of the texts authorized for the use of the University, and there is indication that payment was made by the University to scholars for the annotation and proof-reading of such texts. In fact, there existed in France in those days a kind of guild of

Invention of printing

libraires jurės or legalized booksellers, under regulation of the University, as a body of publishers and writers having jurisdiction over the copying and censorship of manuscripts. “Letters of patent" of Charles V, 1368, specified fourteen libraires and eleven écrivains as registered in Paris, and four chief libraires had jurisdiction over the calling of the librarius and the stationarius. The certificate of the correctness of a copy, and perhaps of the right to copy or sell it, may be considered the primitive form of copyright certificate.

The invention of printing, prior to 1450, made protection of literary property a question of rapidly increasing importance. The new art raised, of course, many new questions wherever the guardians of the law were set to their chronic task of applying old ideas of right to new conditions. The earliest copyright certificate, if it may be so called, in a printed book was that in the re-issue of the tractate of Peter Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon certified the correctness of the copy and his approval. At first "privileges” were granted chiefly to printers, for the reproduction of classic or patristic works, but possibly in some cases as the representatives of living writers; and there are early instances of direct grants to authors, the earliest known being in 1486 in Venice to Sabellico.

In Germany, the cradle of the art of printing, whence come the earliest incunabula or cradle-books, printing privileges were developed some decades later than in Italy. Koberger, the early Nuremberg printer, whose imprint dates back to 1473, relied rather on the "courtesy of the trade," and indeed made an agreement in 1495 with Kessler of Basel to respect each other's rights. Yet a suit brought in 1480 by Schöffer, who with Fust had established the first

In Germany

publishing and bookselling business, brought in con- Germany nection with Fust's heirs against Inkus of Frankfort for the infringement of property rights in certain books, and the issue of a preliminary injunction by a court at Basel, indicated some definite legal status.

The first recorded privilege in Germany was issued by the imperial Aulic Council in 1501, to the Rhenish Celtic Sodalitas for the printing of dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as prepared by Celtes of Nuremberg. The imperial privilege covered only the imperial domain, and Celtes in the same year obtained a similar privilege from the magistracy of Frankfort, then the seat of the book-fair, organized there about 1500, afterwards superseded by that at Leipzig. Later, imperial privileges were issued by the Imperial Chancellor in the name of the Emperor, as one in 1510 to the printer Johann Schott of the “Lectura aurea.” In 1512 Maximilian I granted to the historiographer Johann Stab in Lintz a privilege covering "all works” which he “might cause to be printed,” under which he issued licenses on particular books for ten years or less. This grant, however, some authorities consider not a privilege or copyright, but an authorization to license, possibly similar to that which had been granted in 1455 by Frederick III and confirmed later by Maximilian I to Dr. Jacob Össler at Strasburg, perhaps the earliest centre of printing and bookselling, as imperial supervisor of literature and superintendent of printing. In 1512 also, copies or imitations or engravings by Albert Dürer, with forged signature, were ordered confiscated by the magistrates of Nuremberg, though perhaps on grounds of fraud rather than of copyright. But in 1528 Dürer's widow obtained from the Nuremberg authorities exclusive privilege for his works, and in

Germany

that year the magistrates went so far in protecting Dürer's “Proportion" as to restrain another work of the same title and subject, presumably though mistakenly inferred to be an adaptation or imitation, until after the completion and sale of the original work. In 1532 reëngravings of some of Dürer's works were restrained, and when a Latin edition of his “Perspective," printed in Paris, found its way to Nuremberg, the magistrates called the booksellers together, warned them against keeping or selling the unauthorized edition, and sent letters to the magistracy of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action. Luther in his reforming zeal was the first protestant against authors' wrongs, and in a letter of 1528 complained that “there are many now busying themselves with the spoiling of books through misprinting them,” and pleaded for legislation to protect literary producers. In 1531 the city council of Basel enjoined all booksellers from reprinting the books of each other for three years from publication under penalty of one hundred gulden, which illustrates the nature of local legislation, privileging printers as well as other guilds within a city. The protection was usually for short terms and sometimes covered the subject as well as the book, as indicated in the Dürer case.

The coördinate jurisdiction of imperial and local authority continued into the seventeenth century, and besides a special protection of official publications, including church texts and school books, there developed a differentiation between privileged books and protected authors. The imperial city of Frankfort in 1660 passed an ordinance for the protection of bücher" and "autores,” and an imperial patent of 1685 made the curious distinction between “privileged” and “unprivileged” works, which Pütter,

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