Medieval Ghosts in the Copyright Machine

Part Seven in a series about Copyright in the Age of Artificial Intelligence

In four articles this week, we investigated the historical period before modern copyright emerged. For some readers, a four-day history lesson was like getting a tooth pulled without novocaine. Ouch! Sorry about that!

There’s no avoiding history if you wish to be better futurist. To anticipate the future trajectory of any subject that has been around for a long time, it is necessary to revisit the starting point. The conceptual constructs that define our time were shaped by past events. If we remain blind to those origins, then we will be less likely to make accurate forecasts about their future path.

What did we learn? The forerunners of copyright were conceived in the context of the feudal system. The earliest incarnations of proto-copyright varied by kingdom but they shared some common features:

• The right to publish was a privilege that could be revoked on a whim.

• Such rights were modeled on the land grants that formed the basis of the feudal system: loyalty was expected in return.

• The first copyright was granted to an author in Venice but soon thereafter publishers, not authors, were seeking and obtaining such privileges.

• Such rights were effectively a conditional license, limited in duration, but that did not stop publishers from doing everything they could to make them perpetual.

Some features of proto-copyright persist to this day as artefacts of the Middle Ages, entrenched in modern law.

Let’s expose the medieval ghosts hidden in contemporary US copyright.

The publishing monopoly existed long before copyright.

We tend to believe that copyright confers a time-limed monopoly right on the owner. True, but the sequence is wrong. The fact is that the monopoly on publication existed long before anyone dreamed up copyright.

Copyright was not an issue in the Middle Ages for a very simple reason: only one entity in all of Europe had the means to produce copies of books at scale.

The medieval church had total control over the means of reproduction, which was found in monasteries and abbeys. Namely, squads of ink-spattered monks hunched over ergonomically-incorrect desks, penning illuminated manuscripts by hand by the light of a guttering candle, like a scene from The Name of the Rose.

The Church enjoyed a perfect monopoly over publishing for centuries. Outsiders could write, if they knew how, but only the Church could publish.

The issues that led to copyright first began to emerge after the invention of the printing press in 1436. Suddenly it became relatively easy and fast to reproduce text, and that created endless headaches for the Pope.

Even then, the notion of exercising control over the right to reproduce specific texts only became urgent after publishing became a proper business. That did not happen until a booming market for original books began to take shape in the late 1400s.

The introduction of books published in vernacular languages instead of Latin spurred more growth in the 16th century. A lot more people could read them, and they could also read aloud to their illiterate friends and neighbors. This also drove further decentralization away from the Church.

The Church’s motivation for controlling print was never financial. The Church’s goal was to limit the proliferation of new ideas that challenged orthodoxy. Today it’s difficult for us to imagine a monopoly that is not about revenue maximization.

But monopolies are not only about turning a profit. Monopolies can also be about blocking access to resources, or to distribution, or to attention.

When you visualize a monopoly, it helps to picture a citadel with high walls surrounded by a deep moat. Every defensive effort is directed to erecting higher walls and digging deeper moats, not to expansion. This strategy is only successful until someone else devises a way to reframe the zone of competition by moving it further afield. That’s when the moat and wall become anchors to a fading past.

Remember that next time you see Cinderella’s castle in the Walt Disney Company logo. That’s not the hallmark of innovation: it’s a citadel that binds the company to the past.

(By the way, that iconic castle in the Disney logo is ripped off from Neuschwanstein Castle in Bavaria. Today the silhouette of that 19th century palace is the property of the Walt Disney Company. In a future article, I’ll show you that Disney has a longstanding habit of removing works from the public domain and converting them into private intellectual property).

A couple of paradoxical conclusions about monopolies.

The first monopoly over print was about preventing new ideas, not making money. It wouldn’t be the last such anti-innovation monopoly, either, as we shall see next week.

To some extent, this is how copyright is wielded today, too. Big copyright owners often seek to prevent others from using the work, even if they do nothing new with it themselves. This seems to be an inescapable aspect of intellectual property: it creates a lazy rentier class. The longer the term, the less innovation occurs. It is the exact opposite of the outcome intended in the United States Constitution.

Second, monopoly has been an inescapable aspect of copyright since, well, since before there even was a concept of copyright. There are plenty of apologists for the contemporary copyright mafia industry who insist otherwise, but as this week’s articles plainly demonstrate, the two constructs are inextricably bound.

Information Technology always expands the market

The voices that cry out most stridently against new technology always seem to be those who seek to preserve the past at the expense of the future. That’s because they have something to lose. See above, monopoly.

When it comes to generative AI, pay close attention to the party that is crying wolf. If it happens to be a movie studio or book publisher braying against AI, you can be certain they are not raising a fuss on behalf of downtrodden authors and poor artists.

This week we demonstrated clearly that the primary achievement of the printing press was to shatter the Church’s dominance over the information landscape. That’s obvious.

Less obvious is the way the printing press achieved this outcome. It changed the rules of the game by massively expanding the market. In a matter of a few decades, liturgical and religious texts went from 100% of the market to a tiny slice of the whole pie. Meanwhile the pie expanded to previously unimaginable size.

The Church did not play in any of the new categories. To look at it from an investor’s perspective, the Church’s market share in the growth categories was zero, and even in their once-dominant category of religious publishing, their share dwindled because their offerings looked threadbare by the time Martin Luther rolled up, flashing his stylish new wares. Plus, the printing press made it possible for Luther to reach bigger audiences faster in their native language.

The Catholic Church was outclassed by innovation.

Unprepared to innovate and unfamiliar with competition, the Church fought a rearguard action to preserve their fief by kneecapping upstart rivals (the Inquisition). When it became obvious that there was no path to victory, the management decided to cut their losses and make a strategic retreat by exiting from the publishing sector altogether.

Ever since, this has been the exit scenario for every failing monopoly in every sector of the information economy, from the Thurn and Taxis postal service to the Pony Express to the Yellow Pages.

Meanwhile, every new technology in the information field has expanded the number of participants, producers, consumers and end users, creating countless new jobs and new works. New technology grows and expands markets for everyone. Copyright doesn’t.

The printing press was just the first in a long series of novel technologies that expanded the sphere of communication, publication and information publishing. Modern technologies like the telegraph, telephone, radio, motion pictures, television, the VCR, the DVR and the Internet were first ridiculed then feared; ultimately they expanded access to information to more consumers and increased the total volume of information.

Generative AI is likely to repeat this cycle, by conferring superpowers on hundreds of millions of users, and thereby driving a step function increase in the creation of content. More accurately, it will spur an increase in creative expression.

That was supposed to be the job of copyright.

Like all monopolies, copyright is prone to abuse.

Copyright cannot exist without the coercive power of government. An exclusive privilege only works if someone is prepared to deal consequences to those who defy it.

Early prototypical forms of copyright resembled licenses: permission from someone in power. These were paid licenses; the quid pro quo was overt.

In any licensing relationship, there is a heightened risk of corruption. The cozy working relationship between the regulator and the regulated quickly devolves into a kind of favoritism that can become a vector of corruption. James Surowiecke explains: “As the political scientist Mancur Olson famously noted, when the benefits of a regulation are concentrated and the costs are diffuse, the party that gets the benefits is almost certain to win.”

Royal printing privileges were no exception to this pattern. In this week’s articles, we saw how the earliest printer-publishers turned to the government for help when rivals began to pirate their works. Monarchs obliged by granting monopoly rights in the form of royal patents. These were modeled on the land grants that formed the basis of feudal society: a certain kind of loyalty was demanded from the vassal.

This assistance did not come without a price. The princes and kings used their leverage to extract certain concessions from the printers. These included self-censorship and rigid adherence to politically-correct messages by the printer-publishers.

Co-opted, many printer guilds and societies served as the king’s information police force, enforcing laws against seditious or heretical publication on behalf of their patrons by attacking non-compliant printers. In other principalities and kingdoms, some licensed printers ratted out others in an attempt to use the regulatory apparatus to destroy competitors.

That’s one form of corruption. Another form is the kickback paid to the monarch for granting the monopoly. Next week we will take a closer look at that process, and how it led to a crisis in Elizabethan England.