[drn-discuss] *amazing* article on the high costs of copyright monopolies in the 18th century

[Rufus Pollock]

See also the excerpted summary at: http://www.okfn.org/drn/node/46

title: Out of Bounds
author: Ian Gilmour
book_reviewed: The Reading Nation in the Romantic Period by William St 
Clair, Cambridge, 765 pp, £90.00
publication: London Review of Books
date: 2005-01-20

'Johnson wrote The Lives of the Poets,' Elizabeth Barrett Browning 
grumbled, 'and left out the poets.' She exaggerated, of course, but a 
book of that title which omitted Chaucer and Shakespeare, Spenser and 
all the Elizabethans, Donne and nearly all the Jacobeans, while 
including a host of nonentities, such as Pomfret, Stepney, Dyer, Smith, 
Duke and King, was at the very least defective and misleading. The fault 
was not Dr Johnson's. The guilty men, as a contemporary noted, were not 
'the illustrious scholar but his employers, who thought themselves . . . 
the best judges of vendible poetry'.

Johnson's 'employers' were a bunch of London publishers anxious to 
further their own interests against a superior collection of poetry, 
compiled in Scotland, which the London publishing houses regarded as 
illegitimate competition. Since they were chiefly concerned to defend 
their copyrights, some of them dubious, and to stifle the Scottish 
interloper, their selection, which they imposed on Johnson, was the 
outcome of a complicated commercial negotiation conducted in secret 
among themselves, not of a serious consideration of which British poets 
should be honoured by inclusion in the book. Such behaviour, as William 
St Clair amply demonstrates in his magnificent, original and compelling 
study, was characteristic of the London publishers. His book stretches 
far wider than its title suggests. He has a mass of new and fascinating 
things to say about the centuries that followed the invention of 
printing and also about the Victorian age which succeeded 'the Romantic 
period'.

St Clair is concerned to reveal not what people should have read or 
could have read, but what they did read. To discover that and assess the 
influence of books, as he points out, it is not enough to do what many 
previous scholars have done: see which books of the time subsequently 
became famous and popular and which were well reviewed by 
contemporaries, and assume that they are the books people were then 
reading. Good reviews do not necessarily ensure a wide readership, and 
people do not confine their reading to new or recently published books. 
St Clair cites Mary Wollstonecraft's Vindication of the Rights of Woman 
as an example of a book whose later prestige has led scholars to 
overstate its influence at the time. Although it had a respectable, but 
not spectacular, sale in the 1790s, St Clair believes that it made 
little or no difference to the prevailing attitude to women. The sales 
of books advocating or maintaining the inferiority or subordination of 
women to men was so many times greater that Wollstonecraft's feminism 
was 'simply overwhelmed'.

His own approach is very different. He has spent years of productive 
investigation in libraries, publishers' archives, printers' ledgers, 
City livery companies' records, Parliamentary select committee reports 
and many other sources. As a result, he has ascertained the number and 
price of many books that were published and printed, which old books 
were available at the time and what they cost. Now a senior research 
fellow at Trinity College, Cambridge, St Clair was formerly a senior 
civil servant in the Treasury and so knows about figures and gets them 
right. He has been able to find out what people were actually buying and 
reading and which books, because of their price, were out of reach of 
most of the reading population. Yet his detailed research has not 
resulted in a dry-as-dust tome. Much of the detail is in the three 
hundred pages of appendices, though even most of these repay close 
study. The Reading Nation is clearly written and is throughout enjoyable 
to read.

To be able to read a book, two things are necessary: first and 
obviously, literacy, and second, the ability to buy, borrow or hire the 
volume. It is this second requirement which has so often been ignored. 
The price of a book was scarcely less important than the ability to read 
it. Apart from the obvious costs of paper and printing, the key factor 
in determining its price was the intellectual property rights of the 
author, or rather the printer or publisher. St Clair tells us, surely 
rightly, that the invention of intellectual property in Europe in the 
15th century was 'part of an economic and business response to the new 
text-copying technology of print. With manuscript copying, virtually no 
fixed capital was employed.'

In 1583, the formal intellectual property regime was legally inaugurated 
when a Privy Council report recommended that the first printer of a text 
be granted exclusive rights over it. Shortly afterwards, the Stationers' 
Company, a London guild, was endowed by the state with many valuable 
intellectual properties; and from then on the London publishers 
maintained a quasi-monopolistic position by their ownership, real or 
pretended, of intellectual property rights over virtually all well-known 
books. Both then and later, there was a community of interest between 
the London publishing houses and the state. Like all monopolists, the 
publishers wanted to prevent outside competition and to make large 
profits by inflating the price of their goods. Keeping books expensive 
also suited the state both then and later, since it ensured that only 
the well-off could afford to read such dangerous commodities.

The printed book industry soon became just as tenacious of what it 
regarded as its intellectual property rights as were landowners of their 
rights of property over acres of countryside, although, as St Clair 
points out, real property and intellectual property do not closely 
resemble each other. He does not, however, mention perhaps the most 
important difference between them. Many landowners wanted to keep their 
land in their family for centuries, if not permanently, by creating 
legal settlements which would make it impossible for succeeding 
generations to alienate the land in question. But they were not allowed 
to do so for more than a generation – and then a new settlement was 
needed. The principle that 'perpetuity' was forbidden existed before and 
throughout the reign of Henry VIII. 'The mischief that would arise to 
the public,' a Master of the Rolls later said, 'from estates remaining 
for ever or for a long time inalienable or untransferable [would be] a 
damp to industry and a prejudice to trade.' The mischief caused by 
virtually permanent intellectual rights was no less conspicuous, yet 
over them there was no rule against perpetuities.

Until the 1620s, property rights in Shakespeare's plays were distributed 
among a number of printers. Consequently, the plays could be bought 
individually and cheaply and were widely read. But the prospective 
publishers of the First Folio bought up most of those rights, with the 
result that from 1623 nearly all the plays could be bought only in one 
large expensive volume. The effect of this, St Clair writes, was to 
bring Shakespeare 'in from the playhouses, the law courts and the 
country fairs to the hall and the library . . . The book which 
celebrated and monumentalised Shakespeare as a great English author 
simultaneously removed him from most of the nation's readers.' What 
happened to Shakespeare happened on a smaller scale to most writers.

The assertion by publishers of their intellectual rights not only 
prevented the production of reasonably priced books which could be 
afforded by much of the reading population, it also stopped the 
publication of anthologies, abridgments, adaptations and books of 
quotations. For 150 years after 1623, only one Shakespeare anthology, 
that of Dr Dodd in 1752, was permitted. Twenty-five years later, despite 
the efforts of Dr Johnson and others to save him, Dodd was hanged for 
forgery – of a banknote, not of Shakespeare.

The lapsing of the Licensing Act in 1695 ended the tight pre-censorship 
of books that had been restored with the Stuarts. To curb the 
unauthorised production that followed, the government introduced the 
Copyright Act of 1710 'for the Encouragement of learned Men to compose 
and write useful Books'. The act gave the author of a book not yet 
published the sole right of printing it for a term of 14 years from 
first publication, while books that had already been printed were given 
protection for 21 years. While generally favourable to the London book 
industry, the time limit on its continued monopoly was a blow. The 
industry had hoped, as St Clair says, for a statutory right of permanent 
copyright. Instead, they got the first law against 'perpetuity' in 
intellectual rights.

Yet oddly enough, the 1710 act made little difference except in 
Scotland. After the expiry of the 21 years, the English courts gave back 
to the London printing industry what statute had taken away. The court 
of Chancery went on granting to the original printers injunctions 
against competitors who had allegedly infringed their now non-existent 
copyrights. The 1710 act was reduced to a nullity, and from 1710 until 
1774 the result was what St Clair calls 'the high monopoly period'. That 
monopoly was ended by the Scottish courts, which were not hidebound by 
previous decisions and thought that a statute meant what it said and 
that the courts should enforce statutes, not ignore them. The Scottish 
judges had the considerable advantage of being advised on monopolies by 
Adam Smith, their Edinburgh friend and neighbour.

The Scottish publishers naturally followed the decisions of the Scottish 
courts and began to reprint English books that were no longer covered by 
copyright. The leader of the Edinburgh industry, Alexander Donaldson, 
even opened his own shop in London and there sold out-of-copyright books 
at prices about half those prevalent in England, whereupon the English 
publishers sued him in the English courts for 'piratically' reprinting a 
book. The legal chaos and the conflict between the English and Scottish 
courts were finally resolved in 1774. The House of Lords, the highest 
court in both countries, decided, as it had to, that the law of Great 
Britain was laid down by the statute of 1710. The unlawfulness of 
perpetual copyright was confirmed, and all injunctions were dissolved. 
Thus from then until 1808, when copyright was extended from 14 to 28 
years, what St Clair calls a 'brief copyright window' was opened.

During the first three-quarters of the 18th century – St Clair's 'high 
monopoly period' – the British population and real incomes per head were 
rising, but the production of books increased only slightly. In other 
words, production declined in real terms, and the purchase of books 
became even more concentrated in the richer classes. Then, during the 
last quarter of the century, after the end of perpetual copyright in 
1774, when the British reader temporarily escaped from the monopolising 
tyranny of greedy London publishers, that trend was reversed. Book 
production grew, and readership markedly increased.

On the eve of the Romantic period and during it, the state was vigilant 
in suppressing the publication of any book that could be considered 
remotely subversive. From 1790, printing presses required a state 
licence, and many of the rich remained unconvinced of any benefit 
accruing from the less rich being able to read books other than the 
Bible, though even that compendium contained dangerous pages. Not 
surprisingly, therefore, a number of bishops in the days of the French 
Revolution were happy for even the Bible to remain out of bounds to the 
poor, fearing that to teach them to read would be like giving them guns. 
The bishops were instrumental in defeating, in the House of Lords, 
Samuel Whitbread's 1807 bill, which sought to establish a national 
system of education. Opposing that bill in the Commons, an MP maintained 
that giving education to the 'labouring classes of the poor' would be 
'prejudicial to their morals and happiness; it would teach them to 
despise their lot in life, instead of making them good servants in 
agriculture, and other laborious employments to which their rank in 
society had destined them; instead of teaching them subordination, it 
would . . . render them insolent to their superiors.'

One of the leading figures in government, Lord Eldon, who was lord 
chancellor almost without a break from 1801 to 1827, made himself, a 
contemporary historian wrote in 1828, 'Licensor of the Press and 
Censor'. St Clair quotes Eldon in 1793, when he was only attorney 
general and called Sir John Scott, telling an author that he could 
continue to publish his reply to Burke in 'an octavo form so as to 
confine it probably to that class of readers who may consider it coolly' 
(that is, people who would be unlikely to approve of it), but that as 
soon as it was published more 'cheaply for dissemination among the 
populace' (that is, among people who would agree with it), he would be 
prosecuted. A year later, ignoring good legal advice to be content with 
a charge of sedition, Scott prosecuted Thomas Hardy for treason in the 
first of the 1794 trials. At a time when a treason trial normally took 
only one day, Scott opened the prosecution case with a speech that 
lasted nine hours. 'Nine hours,' the former lord chancellor Thurlow 
exclaimed, 'then there's no treason, by God.' After an eight-day trial, 
he was proved right: Hardy was acquitted. During his long years as lord 
chancellor, Eldon's efforts often had a similarly perverse effect.

In 1817, Sherwood, a radical publisher, got hold of the manuscript of 
Wat Tyler, a previously unpublished play by Southey written in his 
radical days in the 1790s, and published it for the first time. Southey 
was horrified, thinking that his long discarded play would now incite 
revolution. Accordingly, he sued Sherwood for breach of copyright. But 
to win his case he had to show that his text was lawful, and as his own 
counsel spoke of its 'wickedness' and Southey himself thought it 
'injurious', Eldon refused him an injunction. In consequence, not only 
Sherwood but a number of pirate publishers printed Wat Tyler, whose 
price fell dramatically so that it was able to reach a very wide 
audience. St Clair estimates that two or three times more copies of Wat 
Tyler were sold than all the other works of Southey combined.

Again unintentionally, Eldon engineered much the same result with 
Shelley's Queen Mab. Initially, Shelley and Harriet, his wife, had 
believed that revolutionary, anti-Christian views could be rendered safe 
from prosecution by being expressed in verse. His publisher had no such 
illusions and was well aware that ordinary publication of the poem would 
undoubtedly lead to both author and publisher being fined and 
imprisoned. So Shelley merely printed privately 250 copies to be given 
away. Four years later, however, in a lawsuit over the custody of his 
two children, after his deserted wife had committed suicide, Harriet's 
family cited Queen Mab as evidence that Shelley would be an unsuitable 
guardian of his children, and Eldon agreed with them. There could, 
therefore, be no copyright protection for Queen Mab, and, as had 
happened with Wat Tyler, the pirates moved in. As its price fell, the 
sales of Queen Mab rose. So, whereas Shelley's other poems either had a 
minuscule sale or were not even published, the revolutionary Queen Mab 
was sold 'cheaply [enough] for dissemination among the populace'. It 
enjoyed a large sale, and was never out of print.

A number of observers saw the absurdity of Eldon's position. By 
withholding intellectual property protection from books he considered 
pernicious, he was in theory penalising their authors. In practice, 
though, the chief effect of his rulings was to ensure that the books he 
disliked were given a huge circulation. The Edinburgh Review urged the 
chancellor to overrule himself. But Eldon was too pigheaded to do 
anything of the sort. And over Byron's Don Juan in 1823, by giving 
advice to his vice-chancellor, who tried the case, he struck his third 
unwitting blow for free speech and the spread of radical literature 
among the working classes, in whom, Southey wrote, Byron's 'poison would 
operate without mitigation.' As Don Juan was in the eyes of the law and 
of the chancellor plainly 'injurious', its publication too forfeited the 
usual protection of copyright.

Byron himself had wanted Don Juan to be published not only in his 
publisher's usual manner but also in 'very small [i.e., small-sized 
pages] and cheap editions . . . to anticipate & neutralise' the pirates; 
not so his publisher, John Murray. But in 1823, Byron left Murray in 
favour of John Hunt, and the remaining cantos of Don Juan were published 
very cheaply in large numbers. After Byron's death the following year 
that quantity was enormously swelled by pirate editions. In consequence, 
St Clair concludes that in its first twenty years Don Juan was read by 
more people than any previous work of English literature.

In contrast to Byron, Wordsworth was opposed to selling his books 
cheaply, and thus had small sales. Even Lyrical Ballads, written with 
Coleridge, which achieved considerable fame and was a short and fairly 
cheap book, did not have a large sale. It evidently did not occur to 
Wordsworth that his later, more expensive books would have reached a far 
larger audience if he had made them cheaper.

Wordsworth temporarily became a high-price publisher himself when, in 
exchange for two-thirds of the net profits he financed two-thirds of the 
costs of The Excursion, which was published in 1814 and cost 42 
shillings. St Clair judges it to have been for its length 'perhaps the 
most expensive work of literature ever published in England'. 
Notwithstanding the two guineas it cost and despite being desperately 
short of money, Shelley bought it when he returned from his elopement 
with Mary Godwin. Byron also bought it, calling it in Don Juan 'a 
drowsy, frowzy poem'. Not many other people did the same. Of the 500 
copies printed in 1814, only 400 were sold in six years. By 1834, 36 
copies were still in stock. Wordsworth did not derive much benefit from 
his publishing experiment.

In 1832, his Poetical Works were issued at 24 shillings in an edition of 
2000. The next year 1600 copies were still unsold, which Wordsworth 
found 'wholly inexplicable'. He lamented that not a single copy of his 
poems had been sold by one of Cumberland's leading booksellers, though 
Cumberland was his 'native county'. He also noted that Byron and Scott 
were the 'only popular writers in that line'. He was certainly right 
about that. St Clair estimates that during the Romantic period, Scott 
sold more novels than all the other novelists combined, while John 
Murray in two years sold 13,000 copies of the first two cantos of Childe 
Harold's Pilgrimage. The Corsair was even more popular, selling 25,000 
copies. Scott and Byron would anyway have been more popular than 
Wordsworth, but had he lowered his prices he might have narrowed the gap.

Foreign publishers were not affected by English copyright laws or 
intellectual rights, and in Paris Galignani published cheap editions of 
English authors, thereby benefiting English travellers on the continent 
and also, as his books were imported illegally into England, many 
Britons who stayed at home. Wordsworth resented Galignani's excellent 
1828 'pirate' edition, which contained all his poems and cost a mere 20 
francs, remarking that 'everybody goes to Paris nowadays.' But that 
didn't stop him owning the Galignani edition of Coleridge, Shelley and 
Keats.

Towards the end of his life, Wordsworth, worried about the financial 
position of his sons after his death, became concerned to extend 
authorial copyright beyond the author's death. In 1836, he supported a 
bill extending copyright to 60 years. The bill failed. But six years 
later another bill extending it to 42 years from publication or 
throughout the life of the author became law. Writing in support of the 
bill, Wordsworth maintained that he 'knew of no work of imagination of 
the very highest class that was ever, in any age or country, produced by 
a man under 35'. He thus dismissed not only the best poems of his old 
friend and collaborator, Coleridge, but also all the poetry of Keats and 
Shelley and almost the entire oeuvre of Byron. Even more absurdly, he 
also relegated to the second division his Lyrical Ballads, the 1805 
edition of The Prelude and some other of his finest poems. Despite 
Wordsworth's almost lifelong devotion to lengthy copyrights, all the 
great Romantic poets he implicitly denigrated were not, as St Clair 
points out, deterred from writing poetry, even though the copyright 
regime of their time was relatively short.

In an illuminating conclusion, St Clair stresses the importance of three 
structures in influencing or determining what many people read and, 
consequently, their outlook and mentality. These were 'private 
intellectual property in the hands of the text-copying industry, 
cartelisation within the industry, and a close alliance between the 
state and the industry in which the industry delivered textual policing 
and self-censorship in exchange for economic privileges', and their 
consequence was that much of the reading public between 1600 and 1780, 
who could not afford the inflated prices of new books charged by the 
cartel, were confined to texts that were increasingly obsolescent and 
gave misleading information on almost everything from religion to birth 
control.

Any analysis which draws attention to the immense importance of economic 
factors in determining the cultural consciousness of 18th-century 
society will have obvious echoes of Karl Marx. But, just as Popper 
pointed out that while Beethoven was affected by such social 
developments as the enlargement of the orchestra, no theory of 
metaphysical or materialist determinism could explain a single bar of 
his music, St Clair is clear that the economic base of the English 
publishing industry cannot explain any of the great poems or novels of 
the Romantic era. He does not wish to resurrect Marxism, but he does 
stress the importance of the economic processes of the publishing and 
printing industry in influencing the minds of readers.

A book containing a vast amount of new information, based on massive 
investigation, could not, one would have thought, fail to contain a lot 
of errors, some of them serious. But the errors I spotted in St Clair's 
book are few and unimportant. Perhaps one of them is worth a mention. 
The Leveller leader, John Lilburne, is described as a 'regicide'. 
'Honest John' Lilburne was indeed asked to join the Special High Court 
of Justice which was set up to try Charles I, but as he wanted the king 
to be tried by the general law of England he refused the invitation. Had 
he sat on the court, he would probably have voted for the king's 
execution and become a regicide, but one cannot be sure even of that. 
Lilburne was so unpredictable and opposition-minded it was said of him 
that 'if there were none other living but himself, John would be against 
Lilburne and Lilburne against John.' The Reading Nation is a work of 
formidable scholarship and accuracy.