Copyright Law versus Tyranny

Part 12 in a series about the history of copyright and the Age of Artificial Intelligence

Welcome to new subscribers! This newsletter is about the themes and topics that shape our understanding of the future. This month we are bringing generative AI into focus by peering through the lens of copyright law. In today’s article, we will learn about the events that led to the introduction of the first modern copyright law in 1709-1710.

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It took the English Parliament two attempts in the 17th century to achieve the separation of powers, including modern copyright. The first attempt was botched, ending in a blood-soaked debacle. But on the second try, they got it right.

To get there, they had to remove a bad king. Twice.

First up: King Charles I, the successor to James I. As an absolute monarch, he was spectacularly incompetent. Conceited, stubborn, deceitful. Dishonest in his dealings with allies and opponents. Nobody trusted him.

Charles lost his head after a disastrous civil war. Actually two or three civil wars, any of which he could have ended if he were not mulish.

His career consisted of cascading blunders and missteps. Charles first managed to annoy Parliament by offering a lackluster account of a failed military incursion in Spain. They refused to grant him further income and passed motions against some of his unlawful actions. Infuriated, Charles retaliated by refusing to convene Parliament for more than a decade. Then he proceeded to launch another fruitless overseas attack, this time in France.

Next, his ally Archbishop Laud created needless conflict by meddling in Scotland’s religious affairs and imposing unwanted reforms. This gambit only succeeded in alienating the Scots, who by blood ought to have been Charles’ strongest base.

Then the Scottish Parliament decided they might be better off without Charles, opting instead for self-rule.

Except there was no legal mechanism for self-rule.

Oops, war.

To crush the defiance, Charles sent the English army to invade Scotland.

Pro tip: it’s a really bad idea to send a foreign army to invade your own home country.

Naturally, the invasion was bungled because Charles lacked the funds to support his army. He summoned Parliament in the hope of extracting some money, but that’s when they presented him with new measures intended to constrain his power. Charles refused to accept any conditions. Deadlocked and frustrated, Charles again dismissed Parliament without getting any money.

To raise funds, he then resorted to extraordinary measures, known as impositions, forest laws, forced loans, wardship and ship money. These new taxes generated a fresh wave of resentment throughout the kingdoms.

As the name suggests, “ship money” was a tax typically applied in coastal towns, but Charles arbitrarily extended it to the entire kingdom, thereby extracting vast amounts of money in a move of dubious legality. In the process he managed to alienate the English, Welsh and the Irish.

Charles also continued to sell royal monopolies, in direct violation of the Statue of Monopolies that had been enacted during his father’s reign to correct kingly excess.

He revoked gifts made previously to Scottish nobility and taxed them on their holdings. He attempted to raise money outside of Parliament with a “forced loan”, imprisoning those who refused to lend to him. More big blunders.

You’d expect a king of Scotland to think twice before picking a fight with his own people. But not Charles. The Scots retaliated by invading England and seizing a big chunk of Northumberland. They steamrolled over the English army.

Civil war was on. Charles’s forces combatted the armies raised by the Scottish and English Parliaments, but the hapless king fought as poorly as he ruled. He ended up a prisoner of the Scots who sold him to the English Parliament for a cash reward.

Nobody wanted to kill the king. The goal was to persuade him to compromise. Charles could have survived if he agreed to abide by the laws set by Parliament, but he refused, stubbornly insisting on the principle of absolute rule by divine right.

He made it even harder after he was arrested. During his trial for treason, he refused to recognize the court, did not engage in the process and refused to enter a plea. In those days, entering no plea was the equivalent of pleading guilty.

In the end, upon hearing rumors that Charles was scheming to organize an army in Scotland, Parliament concluded that it had no choice but to execute him. The leaders of Parliament were quite aware that this decision would create consequences.

59 commissioners (judges) signed Charles’s death warrant, led by Oliver Cromwell, the general who had trounced the royalist army. The execution of a king was a major milestone in European history.

You might think that the age of absolute monarchs in Britain ended with the death of Charles I. You would be wrong. Just one decade later, the cycle began again. And this time it ended with the first modern copyright law.

Why did the Commonwealth fail?

Because killing the king was never the primary objective, Parliament failed to prepare a coherent plan for governing the three kingdoms without a monarch.

Nor did they have a unified stance towards the opposition.

And there was plenty of opposition. Charles’s loyalists remained organized. His sons were alive, in exile in France. Together, they turned the dead king into a martyr.

Their protests poisoned a large part of the population against the new government. Cromwell’s sui generis Commonwealth was doomed from the start by endless agitation in Scotland and Ireland: they were incorporated into the nation but did not have adequate representation in the new government in London. Both maintained that Charles I’s son had inherited the throne.

Parliament lacked a vision for governance without a monarch. The concept of a republic was not yet widely accepted or even understood. Proportional representation was never achieved in the Commonwealth. Ad hoc administrative structures were introduced, then discarded. In the final analysis, rule by the hastily-convened Commonwealth proved to be even less popular than an absolute tyrant.

Cromwell theatrically refused to become a new king, but he ruled anyway as a military dictator. His Puritan extremism turned off most of the population. Rebellion against his rule never ceased. He brutally repressed an Irish uprising, fueling more resistance.

The Commonwealth lasted only 11 years before collapsing into anarchy. Cromwell was unable to establish a durable system of governance: Parliament fractured into factional infighting. He failed to define a mechanism for succession. After Cromwell died, his hapless son Richard ruled briefly before being deposed.

By 1660, fearing the resumption of Civil War, a chastened Parliament sheepishly invited Charles’s son to return from exile and resume rule by the Stuart dynasty.

The Scots were back!

The new king wasted no time restoring the old order. The reforms enacted by Parliament during the interregnum were revoked. 49 of the 59 commissioners who had signed King Charles I’s death warrant in 1649 were pursued in 1660 by the newly-restored King Charles II; those who were apprehended were tried and executed.

Cromwell’s corpse was exhumed, dismembered and discarded in a pit, except for his head.

Cromwell’s head was stuck on a 20-foot metal spike outside Westminster. It was left there for decades.

Charles II intended to leave no doubt about who was in charge. A strong start indeed, but the followthrough was lacking. Charles, like his father and grandfather, was not an especially talented king. And his brother James was even worse.

Once a tyrant, always a tyrant

I’ll skip the blow-by-blow summary of the misrule of the restored Stuart kings. Suffice to say, because they were Stuarts, the newly-restored sons of Charles I remained stubbornly committed to divine rights of kings. They schemed endlessly to bypass Parliament. Religious conflict wracked Scotland and England. Same old tricks.

Confusingly, these two kings were named after their father and grandfather. Groundhog Day, Stuart edition.

The whole tedious process repeated itself. Once again, two kings named Charles and James squared off against Parliament, pushing hard in the direction of absolute monarchy. A vexed Parliament eventually pushed back. Gridlock ensued. Flagrant abuse by the monarch. More misrule. The conflict culminated in another revolution.

This time around, Parliament got it right. They devised a solid plan to replace the bad king with a more pliant King and Queen. They had a clear concept of the policy reforms that were necessary to redress the wrongs of absolute rule and prevent its return.

This time, the story ends not with a beheading but instead with the deposed king abdicating and fleeing into exile. Later, James II made a halfhearted attempt to return, by way of an invasion in Ireland, but it was a bust.

Thereafter Parliament moved swiftly to undo the Stuart legacy and take steps to prevent a repeat performance.

Separation of Powers, finally

James II was deposed following the Glorious Revolution of 1688. What made this revolution “glorious” is that it was relatively bloodless. It led to the comprehensive reordering of the political structure in England that set Britain on the path to becoming a global powerhouse.

After James II was removed, Parliament reset the political foundation of the nation:

• Separation of powers: the primacy of Parliament over the King was established in the Bill of Rights of 1689. Forever after, British monarchs would be subject to the law, prohibited from disregarding laws or inventing their own. Many of the kingly abuses that were chronicled in previous editions of this newsletter were curtailed, including the ability for kings to impose taxes unilaterally or keep a standing army without Parliament’s consent. The Declaration of Rights was read by Parliament and presented to William and Mary of Orange, who accepted it “thankfully” before being crowned the new King and Queen of England, France and Ireland. After centuries of persistent effort, the separation of powers in Britain was secured.

• Partial religious freedom was introduced by the Toleration Act of 1688. Although imperfect, this law was the first in a series of acts designed to quell the turmoil and abuse that followed the Protestant Reformation by setting forth baseline rights of worshippers who did not conform with the Church of England. This law was intended to put an end to the poisonous cycle of conflict, retribution and conspiracy that had characterized life under the Stuart Kings. It extended only to Protestant sects: Jews and Catholics were free to practice their religion but were prohibited from sitting in Parliament, and they had no right to assembly. This Act was influenced by the writing of John Locke.

• Naval supremacy. Because the new king of England was also the stadtholder of Dutch provinces, he commanded two powerful military forces. Instead of warring against each other, as they had done on several occasions during the previous century, the Dutch and English were now free to combine their forces against other European powers, particularly France. William of Orange assigned to the Dutch the supreme command of the army so that they could fend off land attacks from the French; and he assigned the English supreme command of the Navy, which freed the British navy to gain to control over the world’s seas. Likewise, the English army was reorganized. From this point forward, for better or worse, England’s military power on sea and land began to rival all other nations. A few decades later, Britain would emerge as the leading colonial power, capable of projecting force in any theater on the planet.

• Modern intellectual property laws. Begun earlier, but confirmed after the end of the Stuart dynasty, these laws ended the corrupt practice of letters patent and opened a path to innovation. Britain emerged from the 17th century as one of the few nations in Europe with modern patent and copyright laws that were not subject to royal caprice. These laws achieved the desired effect: they removed from the monarch a powerful tool for censorship and a vector of corruption, and they also unleashed a torrent of innovation that cleared the path to the Industrial Revolution. In 1698, Thomas Savery obtained a patent for the first steam engine, joined in 1705 by Thomas Newcomen with his superior atmospheric steam engine; these were improved in a series of patented improvements from 1769 to 1788 by James Watt. The significance of modern patent law to British industrial supremacy must not be underestimated: Savery and Watt were able to secure financing for their ventures because they held exclusive patents. This provides a sharp contrast to the story shared here two weeks ago about the Reverend William Lee, who was unable to obtain a patent from Queen Elizabeth I for his invention of the stocking frame, and therefore died penniless. Strong patents gave investors the confidence to back British industrial innovation. These laws attracted investment capital, and soon the British economy leaped forward.

Resistance persisted. Jacobite loyalists, dead-enders and other supporters of the deposed king continued to grouse and grumble for decades. They caused headaches, but the reforms enacted above did much to limit their political influence.

The new laws set Great Britain on a path towards modernity and a booming economy.

One insight: execution is not enough to to offset the legacy of a bad king. Thoroughgoing reform must follow. On the second attempt, Parliament enacted a series of sweeping measures to dismantle the power of the absolute monarch. That’s how absolute tyranny came to an end in Britain while it persisted in continental Europe and elsewhere for a century or more.

The recurrence of tyranny

As I prepared this newsletter, I was struck by two things.

First, there seem to be an awful lot of parallels between the Stuarts and Donald Trump!

• In both cases, the ruler’s downfall is caused by a blind spot: he sincerely considered himself above the law. One can be sincere, and still be sincerely wrong.

• In both cases, the ruler alienated the legislature for no good reason, causing avoidable conflicts that led to no positive outcome.

• In both cases, the ruler pursued an incoherent foreign policy that turned neutral nations into enemies and ultimately weakened the nation’s strategic position. Remember the China trade war that backfired on American farmers? The Stuarts were masters of kicking this sort of “own goal” against Spain and France.

• In both cases, the ruler racked up record-breaking debts without much to show for it.

• In both cases, the ruler struck opportunistic political deals with religious extremists who meddled in political affairs at the cost of support from moderates.

And there is more:

Bizarre conspiracies abounded. Under Trump, QAnon flourished. QAnon will end up as one the weirdest episodes in American political history. The Stuart dynasty was plagued by endless conspiracy theories, too, mostly concerning the Pope and Catholics, the bogeymen of the age. Rumors circulated constantly, kindling suspicion and distrust. The Stuarts did little to dispel such speculation.

Pointless fights with private industry. Trump famously picked fights with corporations like AT&T. The Stuarts attacked the East India Company: when Charles couldn’t obtain a loan, his soldiers raided a warehouse and seized the company’s entire supply of salt and black pepper spices.

Impeachment. Because of his tissue-thin record of diplomatic and legislative accomplishments, the one thing that Trump is likely to be remembered for is impeachment, twice. King Charles I was also confronted with awkward impeachments of his most trusted advisors. The stakes were considerably higher. His favorite, George Villiers, the 1st Duke of Buckingham, was assassinated after impeachment. Archbishop Laud was impeached for high treason by Parliament in 1640 and executed in 1645. Charles’s top counsellor, Thomas Wentworth, the first Earl of Strafford, was also impeached by Parliament then condemned to death for treason. Charles vowed to protect Strafford, assuring him “upon the word of a king you shall not suffer in life, honour or fortune.” But just like Trump, Charles’s word fell considerably short of being reliable. Strafford was arrested on April 10 and beheaded on May 12.

Plague. The last incidence of the Black Plague struck England during the reign of Charles II. Just as the COVID-19 pandemic undermined Trump’s domestic agenda by shuttering the economy, degrading confidence in his leadership and revealing the inadequacies of his appointed flunkies, so too the Great Plague of London caused economic turmoil and exposed inadequate public sanitation and safety measures. The chaos was compounded by the Great Fire that destroyed London afterwards.

So. Many. Coincidences.

At first, these parallels may seem remarkable. But they are not. This stuff is par for the course for tyrants. The through-line? Overreach, incompetence, bad judgement and contempt for lawful process.

If we were to peer closely at the cabinet and advisors for any would-be tyrant, we’d likely find it populated with creatures of the same low caliber. Men of ambition without talent, jealous mediocrities, people who can’t get things done the normal way, bullies, and awkward dorks bearing a grudge.  

The point is that every bully princeling and would-be tyrant is surround by lickspittle. Enablers, sycophants, yes-men, bootlickers, schemers.  No wonder they experienced failure on a grand scale.

The Persistence of Monarchy

The second thing I noticed was how difficult it was for even the most ardent reformer to conceive of self-government without a king. England simply wasn’t ready in 1649. Despite the obvious incompetence of the Stuarts, it took the better part of a century to generate the political will power to jettison them entirely, and even then, in the end, Parliament meekly invited a royal cousin to take the British crown. They just couldn’t bear to replace the monarchy with a republic. Still can’t.

The Scots made a half-hearted attempt at self-rule, and later so did the Commonwealth. But there was no concrete plan for the proper governance of a republic, and in any case Parliament lacked a popular mandate. The average Englishman had been conditioned to monarchy for generations. The habit was hard to break. Most people at that time could not conceive of a nation led by anything other than a King or Queen.

1710: The birth of modern copyright

On April 10, 1710, a new copyright law was enacted in England. It would come to serve as the prototype for modern copyright laws in Great Britain, the American colonies, Australia and Canada.

The law was named The Statue of Anne in honor of the queen who relinquished the power to grant monopoly printing privileges.

The full title: An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.

The Statute of Anne was intended to bring an end to the cycle of favoritism and suppression that had characterized the preceding two centuries. It ended the perpetual monopoly over the right to print that had distorted the publishing market by conferring an exclusive right on an elite group of printers chosen for loyalty or patronage.

Instead the new law made copyright available to any author, not to publishers; and it limited the duration of copyright to 14 years, with one 14 year extension available if the author were still alive.

The Statute of Anne came about after the exclusive license of the Stationers expired in 1685. The Stationers had lobbied furiously to obtain an extension to their monopoly, but the House of Lords remained resolutely opposed.

After the Stationers lost their exclusive monopoly, what followed was an era of rapid innovation and healthy expansion throughout the publishing industry. From 1685 to 1710, newspapers were launched in cities across the nation, new printing centers were founded in English towns far from London, a substantial quantity of books was imported, and cheap editions of popular titles that were suddenly in the public domain were sold.

The end of censorship also meant that novel ideas about governance and constitutions could flourish. The theory, concept and specific mechanisms of the modern republic entered British political discourse in the early 1700s.

Competition thrived, spurring novel ideas, more publication and lower prices.

The Stationers hated it.

That is, incidentally, precisely why they lobbied for the new copyright act. They knew that, as long as there existed any sort of copyright law at all, they could ultimately bend it to their preference. The publishers understood that “author’s rights” resonated better in the halls of Parliament than “publisher’s rights.” And they also knew that publishers could easily acquire the authors’ copyrights when they bought their manuscripts.  Most important, the new copyright was legally classified as English Common Law, which was far stronger than case law.

This was the essence of the Stationers’ sub rosa scheme to rebuild publisher monopolies under the new law. The Stationers also persisted in raiding, impounding and destroying rival printing presses for decades, even though they officially lost the legal mandate to do so in 1685.

Monopolies die hard. This kind of regulatory bullying still happens today. In a future edition of this newsletter I will provide a vivid example of how modern American corporations subvert copyright law by building IP monopolies, in direct opposition to the intent of the nation’s founders.

The Statute of Anne did not apply to Britain’s colonies. But some colonies in North America used it as a template for local laws, and language was borrowed from it for the first US federal copyright law.

In the next series of articles, we will cross the Atlantic to learn how copyright laws evolved in the American colonies and the fledgling United States. And after that, we will see how the specter of monopoly, never far from copyright, soon reasserted itself.

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Thanks to the readers who have sent me encouragement and questions. Some asked about my recent absence: I was busy working on the East Coast with a client, planning a large scale digital twin project which I hope to describe in a future edition of this newsletter. Some folks inquired about the images in my newsletter: I generate the pictures with Midjourney.