In the very first issue of Poor Richard's Almanac, late in 1732, the young Benjamin Franklin teased a rival publisher and editor, Titan Leeds, by predicting that his death would occur on October 17, 1733. Leeds was not amused, and published a petulant response in his American Almanack. In the next few issues Franklin maintained, with mock solemnity, that his prediction had in fact come true, even though Leeds kept on writing: "Whatever he may pretend, 'tis undoubtedly true that he is really defunct and dead." The humorless Leeds fumed at the treatment he got from the upstart almanac publisher, while Franklin's reputation was bolstered by his clever hoax.
It was a witty satire, it was a daring stroke for an up-and-coming writer -- and it was stolen. The idea comes from Jonathan Swift, whose Bickerstaff Papers appeared in 1708 and 1709. There the fictional Isaac Bickerstaff taunted John Partridge, a quack and almanac-writer, by predicting his death and then pretending to disbelieve Partridge's protestations that he was still alive. Every element of Franklin's sham comes straight from Swift's essays of a quarter-century before, and yet Franklin nowhere credits his source. And though in this case he paraphrased Swift rather than quoting him directly, he often stole words as well as ideas, as when he filched from Rabelais, taking long passages from an English translation of Gargantua and Pantagruel in the Almanac for 1739.
Franklin, in short, was a serial plagiary. Is this some dirty secret from his past, which would have disqualified him from a position of responsibility had it come out during his lifetime? Hardly. When several historians were recently charged with plagiarizing passages in their works, the scandal occupied front pages and buzzed in faculty lounges for months. But when Franklin stole whole works, no one cared. Far from being a scandal, it was almost the norm. In England, Laurence Sterne stole long passages from Robert Burton's Anatomy of Melancholy as he worked on Tristram Shandy, and John Wesley brazenly incorporated much of Samuel Johnson's Taxation No Tyranny into his own Calm Address to Our American Colonies. On both sides of the Atlantic, newspapers and magazines routinely lifted articles from each other without credit or payment.
When the Roman poet Martial accused a rival, Fidentinus, of stealing his verses, he called him a "kidnapper" -- in Latin, plagiarius. The term stuck. The Latin word made its way into English in 1601 when Ben Jonson described a literary thief as a plagiary, a word Jonson's near-namesake, Samuel Johnson, defined in his Dictionary of 1755 as "A thief in literature; one who steals the thoughts or writings of another" and "The crime of literary theft." But, odd though it may seem to us, plagiarism hasn't always been viewed as a crime. Many people throughout history didn't regard words or ideas as property at all, and saw nothing wrong with "borrowing" liberally from others. For centuries, writers (and painters and sculptors and composers) were actually encouraged to copy the masters as closely as possible. Some writers were blamed for being presumptuous enough to invent their own plots. The situations, characters, and ideas in the classics were, after all, the "publica materies," the common property, which the great Roman poet and critic Horace told young writers to pillage. So you'll find hardly any original plots in Shakespeare's thirty-seven or so plays: as Alexander Lindey put it in his study of plagiarism, Shakespeare "evinced a marked propensity for avoiding unnecessary invention." He routinely inserted speeches from history books and other plays into his own, and even in his least derivative work, The Tempest, you'll find long passages copied out of the French writer Montaigne. In the 18th century, writers were still expected to find their material in other writers. Alexander Pope described the plight of the poet who wants to be original by imitating Nature: "Nature and Homer were, he found, the same." We have no choice but to steal from the classics, said Pope, because "To copy Nature is to copy them."
It was only during the 18th century that "originality" in the modern sense became an ideal. An important milestone is Edward Young's Conjectures Concerning Original Composition, which appeared in London in 1759. There Young celebrates novelty and attacks imitation: "Originals are, and ought to be, great Favourites, for they are great Benefactors; they extend the Republic of Letters, and add a new province to its dominion: Imitators only give us a sort of Duplicates of what we had, possibly much better, before." Good authors are original, bad authors copy, and copying is no better than "sordid Theft."
It is, though, an odd sort of theft, because words and ideas are an odd sort of property. If I steal your wallet, your money is gone, but if I steal your words or ideas, you've lost nothing tangible. It's no coincidence that the law began thinking seriously about "intellectual property" -- the notion that you "own" your ideas -- right around the time poets and critics began to value originality. Although authors had been complaining about literary theft since ancient times, they had no recourse until 10 April 1710, when the world's first copyright act was passed in London: "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Author's or Purchasers of Such Copies," known as the Statute of Anne.
A copyright is just what the name suggests: the right to make copies of a work, whether whole or in part. Unauthorized copies of any sort were a problem, but the Statute of Anne wasn't actually aimed at plagiarists. The real target was literary pirates, who reprinted works with the author's name intact but without permission or payment. Technically, plagiarism is no crime. Plagiarism is an ethical matter, copyright is a legal matter, and not every case of plagiarism is against the law. But in practice, many plagiarists violate copyright statutes, since recent works -- usually the ones most worth stealing -- cannot legally be copied, whether by pirates or plagiarists.
Paradoxically, the loudest objections to the Statute of Anne came from the booksellers and publishers. They insisted on an exclusive common-law right to print the books on their lists, a right that they said lasted forever. It took two thirds of a century for the courts to work out the real meaning of the Statute of Anne. The verdict finally came in a case called Donaldson v. Beckett, decided in the House of Lords in 1774. Publishers have no perpetual common-law copyright, said the Lords; the government gives authors the exclusive but limited right to copy their works. Authors can sell that right to publishers, but when that right expires, works can be copied freely by anyone.
America inherited Britain's legal system and its ideas about intellectual property, and by the time the new nation began writing its own laws, copyright was a major concern. In May 1783, the Colonial Congress urged the states "to secure to the authors or publishers of any new books . . . the copy right of such books." Connecticut was the first to comply with "An Act for the Encouragement of Literature and Genius," and in the next three years, all but one of the original thirteen states passed copyright laws. But each law's scope was restricted to a single state: an author who wanted to protect his work had to register a dozen copyrights in a dozen states under a dozen sets of rules. Noah Webster complained bitterly about traveling up and down the country in the 1780s seeking protection for his American Speller. Writers pleaded that copyright should be a Federal issue.
The framers of the U.S. Constitution paid attention. They took intellectual property so seriously that it might be called the first right to be protected by the Constitution. Before the ratification of the Bill of Rights, the Constitution contained the word "right" exactly once, in Article I, Section 8: the Congress has the authority "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It wasn't long before Congress took up its Constitutional mandate. On April 15, 1789, David Ramsay of South Carolina, author of The History of the Revolution of South Carolina, petitioned Congress to protect that book and his next. The House voted to form a select committee, and Thomas Tudor Tucker of South Carolina, Alexander White of Virginia, and Benjamin Huntington of Connecticut met to consider a course of action. On April 20, Tucker reported on the need for a copyright law, and on June 23, Huntington introduced an eleven-page bill: H.R. 10, from the first session of the first Congress. Echoing the language of the Constitution, he called it "A bill to promote the progress of science and useful arts by securing to authors and inventors the exclusive right to their respective writings and inventions." Most of Huntington's bill was actually concerned with patents for inventions, not copyrights for books, but in the second Congressional session the two kinds of intellectual property were split into two bills.
While the bills were being debated, President George Washington devoted part of his first State of the Union Address on 8 January 1790 to the topic: "There is nothing which can better deserve your patronage," he told the Congress, "than the promotion of science and literature. Knowledge is, in every country, the surest basis of public happiness." The Congress agreed, and the new bill, "A bill for the encouragement of learning, by securing the copies of maps, charts, books, and other writings, to the authors and proprietors of such copies, during the times therein mentioned," passed the House on 30 April and the Senate on 14 May. It was signed by Washington on 31 May 1790, and became America's first Federal copyright act. For the first time, authors and proprietors were given "the sole right and liberty of printing, reprinting, publishing and vending" their works. "The crime of literary theft" had actually become a crime, and the sort of pilfering that raised no eyebrows in Franklin's audience a half-century earlier was now a real breach of ethics.
The story didn't end there. Over the next century, more than two hundred copyright bills were debated in Congress, twenty-five of which became law. At first copyright didn't extend to music or art; it didn't safeguard the right to make "derivative" works like translations or dramatizations; and it didn't respect international copyright conventions. British authors had no protection across the Atlantic, and unscrupulous American printers sometimes bribed their London counterparts to give them advance copies of English books. (Charles Dickens famously complained about the practice: in 1842 he called it "a horrible thing that scoundrel-booksellers should grow rich" from English works in American newspapers that "no honest man would admit . . . into his house, for a water-closet doormat.") America entered into a few international copyright treaties in the 19th century, but resisted joining the Berne Convention -- the modern international copyright system -- until 1988, fully 102 years after its founding.
This brief history of the first copyright laws might help us to understand the proper function of intellectual property legislation today. Protecting the property rights of authors was only part of their intention: their more important job was protecting the public and promoting the public good. Plagiaries and pirates hurt the people they steal from, but they also hurt their audiences by selling them stolen goods and discouraging writers from sharing their thoughts. We can see this concern with the public in the Statute of Anne, which was devised "for the encouragement of learned men to compose and write useful books"; we can see it in the U.S. Constitution, which worked "To promote the Progress of Science and useful Arts." They promote this progress in two ways. First, by protecting creators they encourage them to create again. The government gives authors a short-term monopoly because the public will be better served when writers are rewarded. Second, and just as important, they make copyright of a limited duration, so that after the short-term monopoly expires, works enter the "public domain." They then become part of the "publica materies" Horace had written about two thousand years ago, the common stock from which everyone can draw. The Statute of Anne, remember, put an end to the supposed perpetual copyright the booksellers claimed for themselves. Samuel Johnson insisted that "reason and the interests of learning are against" unlimited copyright, "for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation. For the good of the world, therefore, whatever valuable work has once been created by an author, and issued out by him, should be understood as no longer in his power, but as belonging to the publick." Fixed-term copyright ensures that works and ideas will eventually become the shared property of an entire culture. Anyone can quote from them without fear of prosecution, and publishers can compete to make them available at the lowest prices.
Many have argued in recent years that our legislators have forgotten this lesson, and that copyright, which was invented specifically to take power away from the monopolist publishers and to give it for a fixed time to the authors, has instead begun to retard the progress of the useful arts. Most authors grant their copyrights to publishers in order to appear in print, and publishers and the media firms that own them are naturally eager to use the law to maximize their profits. Corporate interests have worked to increase the "limited Times" guaranteed in the Constitution to previously unimagined lengths, hardly distinguishable from the perpetual copyrights the 18-century booksellers urged. The first copyright laws protected a work for fourteen years from its publication. The current U.S. copyright law, by contrast, protects most works for the duration of the author's life plus another 70 years, meaning something published this year may be under monopoly control until the next century. Works published today by a young writer who enjoys a long life may not enter the public domain until 2150, when everyone now alive will be long dead. It is hard to argue that protecting the profits of an author's publisher's stockholders' great-grandchildren a century and a half into the future will encourage authors or increase the stock of ideas usable by the public.
One valuable inheritance of our 18-century past is an admiration for originality, and with it a respect for others' intellectual property rights. We now see plagiarists as thieves, and punish them when they are caught. No modern author could expect the friendly reception Franklin got when he stole from other writers. But we should be careful not to go too far in the other direction by stifling the free exchange of ideas. The law protects us from unscrupulous writers, but we grant authors copyright protection only on the condition that their works will eventually serve the public good.