The rise and fall of royal monopolies
Part eight in a series about Copyright in the Era of Artificial Intelligence
The path to modern copyright went through England, but it took centuries.
We’re on a quest to understand how modern copyright arose in 1710 from the bubbling politico-religious stew in Europe during the 15th to 18th centuries.
So far, we’ve learned how the Church’s monopoly over ideas failed to contain the flood of new publications made possible by printing press; and how, as a consequence, free speech exposed deep philosophical divisions across Europe. Religious unity splintered into warring factions. The religious wars lasted more than a century and reshaped the political landscape of central Europe.
Side note: Don’t let me leave you with the impression that the Church is completely irrelevant in the information economy today. It’s just that the media sphere has expanded so much to contain so many voices and so many viewpoints that the Catholic Church’s influence is now relatively small. Last week, we got a timely reminder that the Church still aspires to play the role as arbiter of our evolving media ecosystem. On August 11, Pope Francis issued a warning about the dangers of artificial intelligence. Unsurprisingly, no AI companies offered a comment on Francis’ statement.
Now back to our story.
Amid the turmoil of the religious wars that wracked Europe from the early 1500s to the mid 1600s, the secular state began to supplant the Church as the ultimate authority over the publishing and printing industries. This was a defensive move. Monarchs were keenly aware of the disruptive power of print and they sought to contain it.
As the Church diminished, the state expanded.
Kings had finer political instincts than the Pope. They quickly surmised that it was fruitless to try to ban printing altogether because it radicalized the printer-publishers.
Instead they co-opted publishing. This was accomplished by creating a licensing system. These state-sanctioned “rights to copy” were a forerunner, however imperfect, of the copyright system that would emerge two centuries later.
This was part of a broader trend of licensing and providing monopoly grants to merchants and traders. As commerce began to grow, and as manufacturing began to replace homemade crafts, kings and princes cashed in by selling royal privileges and patents to entrepreneurs of all kinds.
The “right to make copies” of books was treated like a fief, that is, a metaphorical extension of the exclusive land grants that had formed the basis of feudal society for one thousand years.
Those ancient land grants came with mutual interlocking obligations; and that’s why grants of publishing privilege were no exception. From the king’s perspective, it was all his domain: he made the final determination about who did what, and who got what. The king felt comfortable demanding that publisher show loyalty and respect in exchange for an exclusive grant of rights to virtual property.
Today, this rings sourly. We think, “hang on, the government can’t demand deference from publishers.” But that’s modern thinking. Coming out of the Middle Ages, it was perfectly reasonable for a king to insist on getting a quid pro quo when he granted a privilege to a subject.
As we noted last week, those feudal land grants are probably the origin of the modern concept of intellectual property rights. But there is a lot more to the whole story. This week we are going to explore how the absolute power of kings was challenged after 1500.
Royal Patents and the Separation of Powers
We’ve already discussed how the Church was supplanted by the state. But there’s a second historical arc to consider: the shift of power away from monarchs towards representative assemblies.
This week, we will consider how the governing power that had been centralized in an absolute monarch for centuries was gradually dispersed among various branches of government. Spoiler: it did not happen fast. That process took centuries.
This concept, known as “separation of powers,” is fundamental to our understanding of modern democratic republics. It is a lesson that some of our contemporaries seem to have forgotten.
The separation of powers also pertains to modern copyright. After all, the foundational provision for American intellectual property rights is embedded in the US Constitution, the document that defines and sets forth the separation of powers in the United States.
Today, copyright is no longer a privilege conditionally granted to a subject at the whim of a king; it is now a right that is automatically available to all citizens.
Determination of who gets a particular privilege is no longer subject to the capricious whims of a monarch. That’s one meaningful step towards separating power.
If you want to understand how we arrived at modern copyright, then you want to know about the way that constitutions devolved power away from a central authority and dispersed it among the people and their representatives.
This week we will consider how a new representative system of government, based on rights and laws that were printed on paper, gradually replaced the old feudal model of hereditary monarchy that was based on a purported divine right.
Decentralization begins with the patronage system
A core theme in the process of separating governance powers was the decentralization of power. And as we shall soon see, copyright played a starring role in that process, too.
The monopoly power contained in an arbitrarily-granted royal patent is a tiny instance of the unchecked power that was concentrated in a single absolute monarch. If a monarch granted too many of these tiny monopolies, then they eventually added up to a big burden that was born by the people who paid monopoly rent. And that led to protest, agitation and instability. That’s why the nobility and gentry never ceased to press the king to relinquish power and give the people some relief.
But don’t judge the monarchs too harshly. After all, they had been raised in the tradition of the divine right of kings. That’s the way it had always been, that’s the way their fathers did it, and they saw no compelling reason why they should be the ones to make a change. Most of their royal advisors urged the king to stand strong against the grasping nobility and rising gentry.
Moreover, modern economics was not invented until 1776. It is fruitless to judge 16th-century rulers by modern standards. They did not know.
The history of kings and emperors from 1600 to the 20th century is that, eventually, after years of supplication and gentle requests, one ruler got it dramatically wrong, misreading the tea leaves, cracking down on the public when he probably should have relented instead. Oops. This always ends the same way.
Those monarchs learned the hard way what today’s Web 3 geeks tout as the “historical inevitability of decentralized power”, just a few seconds before an axe separated their heads from their bodies.
However, until that axe was swung, there was no way to win power by confronting the king head-on. He’d send you to the Tower to rot.
That’s why members of the nobility and gentry who sought to chisel down the king’s immense power made a tactically wise decision: they decided to focus on circumscribing the use of the royal letters of patent as one of the first moves on the chessboard.
Put it like this: if you want to dilute the power of a king, a good starting point is to strip away his ability to run a patronage system. That way, you’re not attacking the king directly: instead, you are defunding his flunkies and toadies. Isolation was a good way to gain leverage over the King and bring him back to the bargaining table.
During the 17th century, the use and abuse of monopolies granted by kings and queens emerged as one of the main battlegrounds in the struggle to attain the separation of powers. And that is exactly how modern copyright emerged.
Why did France and England end up with completely different political outcomes?
While the monarchy in France evolved in the direction of absolutism, with the legislative, judicial and executive power concentrated in the sole person of the King, the trend in England evolved in the opposite direction.
English kings and queens slowly relinquished power to Parliament.
Not voluntarily. It took centuries.
Quick! Let’s backwind to 1215. When King John accepted, then repudiated, the Magna Carta in 1215, the fracas kickstarted a civil war. After the invading French army that came to John’s rescue was bribed to return home, the conflict degraded into a power struggle between rival factions of the nobility and John’s successors.
The key issues in this conflict included:
defining and documenting the rights of nobility, and
the concept that the King was subject to laws.
This process was not just about separating powers, but also enumerating them and documenting them in writing.
After a couple of recalcitrant kings, the nobility eventually prevailed. Their rights were set forth in a written document. Hurrah! But that did not mean the conflict was over. English monarchs continued to assert their divine right to rule with absolute power until Charles I lost his head in 1649.
More than 470 years passed between the signing of the Magna Carta and the end of the Glorious Revolution in 1689. That’s how long it took for English kings to concede that they were obliged to comply with laws printed on paper.
This tug-of-war took centuries. But that story is boring. Let’s skip past a few centuries to get to the next part of our story. After decades of tension, the English Parliament gradually gained control of the purse and the power of taxation. Removing the king’s fingers from the nation’s purse was the beginning of separation of power; and this is why the legislatures in modern republics, not the executive branch, control the purse today.
The ability for Parliament to put its collective foot on the money hose gave Parliament leverage over the King… but only when the King chose to convene Parliament.
That’s the rub. In the 1500s, English monarchs had the right to decide when (and whether) to convene Parliament. If the king did not call, then the nobility and gentry were powerless to contain him.
How did copyright emerge from this standoff?
The first modern copyright law emerged from the tug-of-war between Parliament and the King, but the process took two centuries of trial and error.
Copyright wasn’t just a side effect: it eventually became the primary focal point in a century-long showdown between Parliament and the English crown. But that took a long time.
It wasn’t until the kings began to realize that they could control the power of the media that copyright became a political issue in England. Obviously, that happened after the printing press (1445 or thereabouts) and the Reformation (1520 and later).
So this week we will fast-forward to Tudor England to consider the role of the printing press, free speech, and battles over royal monopolies, because these factors determined how modern copyright emerged.
We will focus on the House of Tudor for two good reasons:
When Henry VIII left the Catholic Church and declared himself the head of the Church of England, he was no longer answerable to the Pope or to the clergy. In other words, 15th Century England was the one place in Europe where the King had displaced the Catholic Church entirely. Eventually, this happened in other parts of Europe, of course, but much later. Henry was the first to name himself the head of a new national church. So if we want to analyze the struggle over separation of powers without the additional complexity of the Pope’s machinations, then England is the right place to study.
Henry’s successor, Elizabeth I, established the national monopoly over printing. Elizabeth was a prolific granter of monopolies, good and bad. Most of them were revoked shortly after she died. But the monopoly that she granted to the printer’s guild outlasted her by nearly a century. This was the final obstacle to the modern concept of copyright.
The Tudor monarchs were pivotal to England’s (and eventually Britain’s) entry into the modern era. Their dynasty is situated at the brink of the Middle Ages and the Enlightenment, but it belongs to neither era. In some respects, the Tudors are responsible for setting Britain on its path towards global empire and the industrial revolution. In some other respects, however, they were holdovers from the feudal era.
English political history in the 1500s and 1600s can be summarized this way: when the King (or Queen) was broke and needed the money, he (or she) turned to Parliament. That’s when Parliament put the squeeze on the monarch. That is how decentralization of power occurred.
England was not a wealthy nation in those years. By 1585, the nation found itself embroiled in major conflicts with both the Pope and Spain, the richest and most powerful Empire in the world. Wars are damned expensive. Decentralization of power was inevitable, but it came slowly and not without considerable effort.
Tomorrow we will delve into the reigns of King Henry VIII and his remarkable daughter, Queen Elizabeth I. They played pivotal roles in this saga.