How the State Displaced the Church

The fifth article in a series about Copyright in the Age of Generative Artificial Intelligence

This is the fifth article in a series of about copyright and generative Artificial Intelligence. The first two parts presented the collision between generative AI and copyright and explored why society needs copyright laws.

This week, we are taking a short detour to understand what life was like before modern copyright laws were introduced. I want to understand how the free expression of ideas changed the social order across Europe. And, wow, big change occurred.

Monday’s article explained how, in five simple steps, the printing press enabled public debate to accelerate beyond the control of the Catholic Church to the point where the Church was the topic of debate. Yesterday’s article described how the Church’s reaction caused an escalating conflict to culminate in the spectacularly-destructive wars of religion that consumed Europe for the better part of a century.

Ideas don’t just transform society: sometimes, they remodel it with a wrecking ball.

Today we turn our attention to the new secular order that arose after the wars of religion had dislodged the Church from a position of control in many parts of Europe. Copyright eventually was born in this new environment.

By 1550, printing had become a dangerous profession

As demonstrated by the wars of religion, by spurring dramatic change very quickly, the printing press presented an unambiguous threat to outdated modes of government.

It made feudal hierarchy obsolete. It introduced the scientific method, a falsifiable mode of testing rational hypotheses that rendered irrelevant the fact-free assertions of spiritual and hereditary authority. Everything was up for discussion.

It is no exaggeration to state that the advent of moveable type reshaped European civilization.

The subversive effects of mechanical printing did not go unnoticed by monarchs. They were well aware of the havoc wrought by printed works on the information environment maintained by the Church.

That’s why rulers in every nation sought to exert some measure of control over the kinds of ideas that could be published in their realms. Yet the European monarchs, led by the Holy Roman Emperor Charles V, approached the matter in a more constructive way than the Church. Confrontation only made the threat more potent.

The antidote to the disorder caused by the incendiary free flow of information was the imposition of defined limits on the right to publish.

The desire to exert control over the free circulation of ideas led directly to the development of the modern idea of copyright.  That’s a bold claim: it may seem counterintuitive, so let’s dive a little deeper to understand this apparent paradox.

Secular governments displaced the Church as guardians of ideological purity.

The Thirty Years’ War had begun as a conflict between warring religious factions. It swiftly devolved into a dynastic dispute between warring factions, and ended with the secular state displacing theocratic leadership in many areas of governance.

In the Northern half of Europe, the Church never again regained its position of authority over ideas, education, and culture (though it persisted in Spain and Italy). Forever after, secular government would remain in charge of society. Secular leaders began to write new laws that governed publishing, speech, and education.

During the Thirty Years’ War, in every region where the printing press had been established, governments began to experiment with techniques to govern the publication and circulation of new ideas.

The techniques varied, but the goal was the same in every principality and duchy: to prevent the circulation of heretical, seditious, or subversive concepts.

After 1550, European monarchs introduced a combination of permission, privilege, censorship, licensing, cartels, guilds, royal monopolies, and the threat of imprisonment to exert control over the flow of ideas. Contained in these measures were the precursors to copyright.

The complex new rules that governed printing required the creation of a new kind of government apparatus: a growing class of literate administrators who were tasked with supervising commercial activity, investigating infractions, and imposing consequences.

Prior to the advent of the printing press, there had been no need for such a bureaucracy; ever since, bureaucracy has remained a feature of secular government (much to the chagrin of conservatives who advocate for smaller government).

This new state bureaucracy assumed a responsibility that had previously been the exclusive province of the Church: managing the information landscape and the circulation of ideas.

The shift to secular control over knowledge production created the conditions for copyright to emerge; but the process was slowed by monarchs who used revocable permission to manipulate publishers. The political dynamics varied in every kingdom, and sometimes veered wildly from one monarch to his successor, but the basic pattern was simple: by extending permission to publishers, kings were able to extract concessions.

Permission to print, backed up by the coercive power of the State

State supervision turned printing into a risky business. Penalties swift and severe befell those who flouted the princely rules. Presses were seized or destroyed, and printers were expelled, imprisoned, and sometimes killed for transgressions.

The laws introduced in the 17th and 18th centuries stayed on the books for a long time. When the Bastille was stormed by an angry mob during the French Revolution in 1789, more than 800 printers, authors, book dealers and publishers were incarcerated there.

Some printers were radicalized by their brush with authority, which led to further rounds of seditious publications that increased the likelihood of violent reprisals.

During the Thirty Years’ War (1618 to 1648), certain cities were targeted for invasion because they sheltered subversive print shops. The print industry had begun in Mainz with Gutenberg, but by the end of the war, the city was a smoking ruin.

The German printers were dispersed by war, driven to the Republic of Venice, or to the Netherlands, Britain, Italy, France, and other nations. There they sometimes flourished, and in other cases were subject to capricious and arbitrary impulses of the reigning monarch.

Piracy and economic risk put publishers at the mercy of monarchs.

Printing was not just politically risky: it was also economically perilous. Before the introduction of copyright, there were no rules to govern the right to reproduce texts. This led to a free-for-all in many cities whereby rival print shops rushed to release bootleg editions of every popular text, depriving the original publisher of the ability to recover their initial investment in the work. Original editions printed in one town would often be copied and republished by other printers in nearby towns. This was done without consent or compensation.

Such theft could be economically ruinous. It cost printers a large sum to acquire original works for publication and to set the type for mass reproduction. It cost the bootleggers very little to steal the text and publish a renegade edition.

Without control over the right to reproduce their original works, printers lacked the ability to recover their investment. Bankruptcy and debtors’ prison were frequent outcomes.

The term “piracy” was used to characterize the business of reproducing published content without permission. Printers soon organized into guilds or cartels, united in opposition to piracy; the guilds appealed to their princely patrons for protection.

Rampant piracy presented an excellent opportunity for monarchs to gain control over printers because the newly-founded printer guilds begged for regulation.

(Does this seem familiar? Recall Sam Altman’s testimony to Congress last month. Sometimes first-to-market companies will call on government to erect regulatory barriers that create an obstacle for late-arriving competitors).

Limits on the ability to print copies were an economic necessity demanded by publishers: only the state had the power to impose such limits.

State intervention was required to enforce the business model of publishing.

Piracy exposed a fatal weakness in the business model of publishing. This flaw gave European rulers the leverage to gain control over the dissemination of subversive ideas within their kingdoms and principalities.

This vulnerability persists to our present time. Today publishers rely upon the legislative and judicial branches of the government (not monarchs) to enforce their business model with rules and regulations that govern the right to reproduce expressive works; and to punish infringement with penalties.

In other words, exclusive copyright only works when it is backed up by the coercive power of the state.

The princes cut a deal with the printers. 

For centuries, religious authorities had tried and failed to control printing by relying on condemnation, excommunication and Inquisition; however, in a short span of years, secular rulers were far more successful.

Why? The kings relied on simple economic incentives to accomplish what the church could not.

The earliest forerunners of copyright were schemes that employed some combination of carrot and stick:  the lure of economic benefit in combination with a threat of punishment were sufficient to bring publishers to heel. Play by the rules, and you can have a nice profitable monopoly. Break the rules and we will crush you.

Most printers went along for the ride. Some went further, voluntarily serving as snitches who reported to the authorities about non-compliant, unlicensed printers in their midst.  

Seeking to eliminate competition, the printers became vassals in service to the monarch. Printing guilds devolved into self-policing entities that enforced the will of the ruler among their membership: those who failed to comply were silenced or banished.

In sum, the European publishers aligned on a business model that could only be enforced by government. This gave the government enormous power over free expression.

In the next article in this series, we will explore the forerunners to copyright: royal patents, monopolies, privileges and cartels.