From the 17th to the 21st centuries: Copyright, Creativity and Access

Who should pay for creativity and how?

And who should be able to access creative works and how?

These are questions to which the answers have varied over time, leading to different business models, and different outcomes.

Of course, at the heart of this discussion is copyright – a set of exclusive rights awarded to creators allowing them control over copying and many forms of use of the works they have created.

As this blog will set out, copyright is often portrayed as a form of progress compared to what came before. However, the shift from patronage to a free market cannot be the end of the process if we are to reflect the understanding of human rights that has emerged over the 20th and 21st centuries.

From the 17th to the 19th centuries

The traditional model of supporting creativity and the arts is often characterised as being about patronage, i.e. where wealthy individuals or organisations simply provide the money up front for a new book, painting or other work.

For a long time indeed, monarchs, aristocrats, wealthy merchants and businesspeople, and religious institutions tended to be the ones paying the bills, in highly unequal societies where most people were illiterate and struggled to survive.

Under this model, the only works that would get created were those that could find a wealthy backer.

We can see this as a 17th century model (or at least the model that dominated up until the 17th century) – i.e. before the first copyright laws came into force in the early 18th century, and were internationalised with the Berne Convention in the 19th.

In effect, by creating a property right, copyright made it possible to turn works into commodities that could be bought and sold on the market. In doing so, it ensured that it wasn’t just the richest people and institutions that determined what would be paid for, but rather the wider buying public

Of course, it is not as if the patronage model has gone away. Patronage by wealthy backers is still a big thing in the visual arts sector, and government cultural policies can often be key in helping emerging talents and minority voices break through.

Moreover, in the scholarly sector, copyright has little if anything to do with whether researchers get paid – university salaries and grants rather account for this.

Nonetheless, those arguing for stronger copyright often focus on the importance of the shift from a (17th century) patronage model to a (19th century) market model as progress.

Under this discourse, copyright is a democratising influence, allowing the decisions of millions of consumers to determine what gets produced, rather than a small number of powerful and/or wealthy individuals.

From the 19th to the 21st centuries: from charity to guarantees

The promotion of the idea of copyright as a far-reaching exclusive property right created a new issue however – how to facilitate uses of works that contribute to broader public interest goals.

With the 20th century, the notion of universal human rights came into focus with the Universal Declaration of 1948. In the 21st century, the logic of ‘no-one left behind’ and a ‘right to development’ have come into the mainstream, accentuating the idea that everyone has a right to a basic set of possibilities to fulfil their potential.

In this context, there is the question of how to meet the needs of people who might need books and other works, but cannot otherwise afford them. In other words, what would happen when the free market doesn’t deliver?

The 19th century approach was, arguably, through charity. The generous rich would provide support for the less fortunate, on a discretionary basis. In effect, they filled a gap that many governments were unwilling to fill, although doubtless in doing to encouraged the idea that there was no need for governments to act at all.

We still see the legacy of this approach, not least in the case of libraries with the construction of many institutions by people like Andrew Carnegie.

However, philanthropists and their fortunes come and go, and goodwill alone does not provide a strong foundation for guaranteeing fundamental rights.

Over the 20th century, the importance of exceptions and limitations to copyright, as a means of avoiding market failures and guaranteeing possibilities to deliver education, research, parody and beyond, emerged, not least through doctrines such as Fair Dealing and Fair Use.

However, these exceptions have increasingly been bypassed in the 21st century with the rise of digital tools for providing access to content. With the terms of contracts often priming over law, and few libraries or users in a position truly to negotiate terms, rightholders have an immense ability to determine what can and cannot be done with books, returning to a model of unlimited rights.

In the case of libraries, this means control over what our institutions can buy, whether they can lend it, copy it for education or research purposes, or even preserve it for the future.

This is not, arguably, an adequate way to enable libraries to carry out activities that make a reality of these key activities. Relying on a combination of the market and the discretionary generosity of private actors is not enough.

We have seen, during the COVID pandemic, that depending on goodwill offers of access to materials by rightholders has led to a highly uneven level of access, which often stopped well before the need for this disappeared (indeed, this need is continuing).

This is where the importance of a modern, balanced copyright system comes in, ensuring that institutions like libraries, as well as schools, research institutions and others, are able to deliver on these key rights, independently of the goodwill of private actors.

If we are to ensure that the rights of access to education, research and culture are realised in the 21st century, we need copyright laws that take a positive approach to delivering on these rights.

Clearly, of course, this needs to be done in a way that does not jeopardise the creation of works in the first place, but there is evidence enough that empowered libraries constitute an asset, not a threat, to the sustainability of the book sector.

In particular in fields where governments already play a key role in paying for creativity and publishing, the importance of ensuring that these investments deliver on public interest objectives is particularly strong.

In short, a modern copyright system requires not just a shift from patronage by the wealthy to a greater freedom to create and earn a living from creativity – i.e. from the 17th to the 19th centuries – but also a shift from fundamental rights of access to information depending purely on goodwill to being guaranteed in law – and so from the 19th to the 21st centuries.