Against Intellectual Monopoly

pause for a minute, and you will realize
that it makes no business sense. Picking only winners means waiting until
it is clear who is a winner. Well, try it: try getting somewhere by imitating
the leaders only after you are certain they are the leaders. Try ruining the
poor pop star by "pirating" her tunes only once you are certain they are big
hits! Excuse us, we thought that "being a hit" meant "having sold millions of copies." Try competing in a real industry by imitating the winners only
when they have already won and you have left them plenty of time to make
huge profits and establish and consolidate their position - and probably
have not left much of a market for you, the sleek imitator.

The World Before Copyright
    Movies and news, not to speak of software code, are relatively new products.
Music and literature go back to the dawn of civilization. For at least three
thousand years, musical and literary works have been created in pretty much
every society, and in the complete absence - in fact, often under the explicit
prohibition - of any kind of copyright protection. For the economic and
legal theories of "no innovation without monopolization," this plain fact is
as inexplicable a mystery as the Catholic dogma of virginitas ante partum is
for most of us.26 To see the actual impact of copyright on creativity, let us
start with some history. Copyright emerged in different European countries
only after the invention of the printing press. Copyright originated not
to protect the profits of authors from copyists or to encourage creation,
but rather as an instrument of government censorship. Royal and religious
powers arrogated to themselves the right to decide what could and could not
be safely printed. Hence, the right to copy was a concession of the powerful
to the citizenry to print and read what the powerful thought proper to print
and read; Galileo's trial was nothing more than an exercise in copyright
enforcement by the pope of Rome.
    Later on, and mostly in the eighteenth century, in parallel with the diffusion, for the same purpose, of royal patents, copyright concessions began to
be used as tax instruments. Selling a copyright, exactly like selling a patent,
amounted to giving monopoly power to someone in exchange for bribing
the royal power. The creation, in the United Kingdom, of the Stationers'
Company, with virtual monopoly over printing and publishing, is probably
the best-known example of such practice. There is no evidence, from the
United Kingdom or from other European countries, such as the Republic of
Venice, which adopted similar laws, that they provided any particular boost
to either literary creation or the spread of literacy.
    The Statute of Anne, adopted in England by 1710, is considered the first
piece of legislation that, in the modern spirit, separates the censorship function from that of the personal ownership of the literary product, allocating
to authors, or to the lawful buyers of their manuscripts, an exclusive right of
publication that lasted for fourteen years. Notice the number: fourteen, not
as it is today, the life of author plus seventy-five; William Shakespeare had
found incentives for writing his opus even without those fourteen years,
and yet no Shakespeare appeared after 1710.

    It took almost a century of controversial ups and downs for the copyright
legislation to be fully accepted in England, and to spread to the rest of
Europe.27 Around the time of the French Revolution, and under the label
of propriete litteraire, the idea that the works of art, literature, and music
belonged to their authors who could sell or reproduce them at will, without
royal authorization, became popular. The fight for propriete litterairewas not
a fight for monopoly but, instead, a request to abolish a particularly hideous
royal monopoly: that over ideas and their expression. The institutional
arrangements surrounding eighteenth-century French publishing in the
absence of copyright is also of some interest. Books were copied frequently
and quickly. There were no royalties and authors were paid in advance. Many
small firms were organized just to publish a single book. In short, books
were published, authors were paid, and all without the benefit of copyright.
    We have already mentioned, early in this chapter, the very particular form
in which literary copyright was introduced in the United States in 1790 and
how the absence of copyright