What's Mine Is Mine and What Is Yours Is Yours

The Politics of Copyright on the Internet

(Not quite Measure for Measure 5.1.570: "What's mine is yours and what is yours is mine.")

A paper written for the seminar "The Politics of the Electronic Text" at the Shakespeare Association of America, Washington DC, March 1997

Ownership of texts

From the beginning, copyright -- the ownership of texts -- has been political. Books in Shakespeare's London were subject to licensing both because of the ideological imperatives of the government of the day, and because those who produced the books wished to retain economic control over their materials. As Shakespeare scholars, we are familiar with the illuminating and frustrating source of so much information about the texts of the period found in the Stationers' Register, that early record of the ownership and economic control of texts. Through the Register, the Stationers' Company enforced principles of ownership that have not fundamentally changed in the application of copyright law today. But the attitude of writers to their works seems to have been fundamentally different from our own. Barbara Mowat has recently argued persuasively that textual problems in Shakespeare's plays would not miraculously be solved if some of his original manuscripts were discovered; [1] the evidence from surviving manuscripts suggests that for many writers their works were rather like modern Internet pages, always under construction, and never fixed in some final form. How much more, then, for plays, where even in today's more individualistic world, some active playwrights workshop their plays, revising extensively while the play is in performance? [2]

Objects can only be stolen if they have an owner. Perhaps the most quoted source of our information about Shakespeare's early texts is the phrase about "stolne and surreptitious copies" in the Preface to the First Folio by Heminge and Condell. What is less often remarked upon in discussing this issue is that the plays or play scripts were not stolen from Shakespeare as an individual, but from the acting company for which he wrote; if there was ownership, it was ownership by a collective. And once the script had been printed, it was owned by the publisher, whether or not it had been entered in the Stationers' Register (Patterson 55-64). Intellectual property was not a concept that would have meant much in this climate: property was concrete, an actual play script or an entry in a register referring to it.

Shakespeare's use of sources

The general attitude among writers in this period to the sources they used in writing fits in well with an assumption that intellectual content was not subject to ownership. Plays, poems, and prose narratives were fair game for adaptation into new plays, and no-one called it plagiarism, even when whole plots or large chunks of text were appropriated. In more than one sense, play scripts were collaboratively written; not only the vast number of plays written by more than one author, but even those by one author were often the product of the combination of earlier works and a new approach, very likely modified, perhaps even subjected by the company to a process similar to modern workshopping. Several of Shakespeare's and (even more strikingly) Marlowe's plays attest to the process -- and the fine disregard for any sense of authorial authority or ownership by the collective of actors. [3]

The exception was, of course, Ben Jonson, who chose to publish his own _Works_, including his plays, in 1616. In the course of his history of the invention of copyright, Mark Rose singles out the publication of Jonson's _Works_ as "a significant moment in the development of authorship" (26). Jonson treated his plays as works of classical literature, revising them, and adding the apparatus of classical scenes to make them identifiably his own. It can be seen as a confirmation of the lower status of plays -- either as less-than-serious literature, or as belonging to a collective -- that Jonson pointedly refers to them in two of his dedications as "poems." [4] That the climate was changing can be seen as early as 1665, when in a well-known passage Dryden wrote of Ben Jonson's extensive use of classical sources:

He was deeply conversant in the ancients, both Greek and Latin, and he borrowed boldly from them; there is scarce a poet or historian among the Roman authors of those times whom he has not translated in Sejanus and Cataline. But he has done his robberies so openly, that one may see he fears not to be taxed by any law. He invades authors like a monarch; and what would be theft in other poets is only victory in him. (416-7)

The first formal copyright law in England was enacted 35 years later, in 1710.

Copyright and the Internet

The radical change from manuscript to printed book stimulated the creation of the Stationers' Company, and within the company eventually brought about the dominance of the publisher over the previous hegemony of the bookbinder (Patterson 35-6; 45). In an interestingly parallel development, as the astonishing capacity of the Internet to make texts even more freely available than the book increases, copyright and its legal application is again very much in flux. [5] Ironically, as the means of copying becomes simpler, the defense of intellectual property has become more fierce. Xeroxing and high quality color copying now make the duplication of texts and images from books trivial; OCR software is increasingly making the transition from printed to electronic text more rapid. And once an electronic text is on the Internet it can be multiplied millions of times with no effort.

Today, it is fair to say that the general perception of copyright is that texts are no longer the product or property of a collective; they are copyrighted by individuals, many of whom depend on their work to live, and deserve appropriate reward for the use of their property. One interesting exception to this rule, however, is the practice in the academic community, where most university presses and academic journals retain copyright rather than the individual authors. Here again the motive behind copyright is economic; publications of this kind are generally subsidized on one way or another, and depend on fees for reproduction to provide some additional income. Individual contributors are rewarded within the academic community by the currency of promotion, tenure, and prestige, rather than royalties. Images owned by galleries and libraries are likewise protected because, especially at a time when government support of public institutions is declining, the source of revenue in providing quality prints and rights of reproduction in some instances is of significant value to the owners.

In a curious way, some current copyright practices in the academic community echo those of Shakespeare's day. Here many texts belong not to an individual but to a collective (a journal, a press), and if authors wish to allow reproduction of material they have written, they must apply to the collective for permission to do so. In general, presses and journals are generous in giving permission to the authors, but their willingness to allow reproduction on the Internet is likely to be less accommodating because of the freedom it offers in further duplication. It is also true that there has been intense lobbying by publishers and copyright consortia as governments introduce legislation to try to deal with the increasingly complex questions of copyright in the electronic media. In Canada at the moment there is a real danger of the balance being tilted far more in favor of the owner of copyright, less in favor of the fair use of materials in education and research, as the second stage of a major revision of copyright law works its way through the parliamentary system, and the lobby of the owners of intellectual property seems to be gaining the upper hand. On the Internet more generally, the proliferation of commercial sites has led to legal challenges to the practice of linking freely between sites, since it is possible, for example, to put an image from another site on your own page simply by including a hypertext link. [6]

The Internet Shakespeare Editions and copyright

The Internet Shakespeare Editions (ISE) [7] face a number of challenges in their attempt to develop comprehensive editions that will be freely available over a medium that allows for maximum duplication. Some solutions are relatively simple. The texts themselves will be re-edited from scratch in order to avoid problems of copyright. The virtue that arises from this necessity is that the texts will be specifically edited for the new medium, with all its capacity for cross-linking, and its freedom from the sometimes arcane restrictions of the printed page on such apparatus as notes and collation, for example. A more complex problem arises as a result of the capacity of the Internet to offer far more than a print edition in terms of supporting materials: critical or historical texts, graphics, sound and video files. In these areas, the ISE will be both negotiating solutions where possible, and employing "workarounds" where no convenient solution is available.

One general issue that is the subject of much debate at the moment is that of "fair use" in the quotation of materials -- text, graphics, video, sound. The subject is so much in flux, and so contentious, that almost nothing can be taken for granted, even the use of such things as comments that are posted on newsgroups or the various discussion groups on the Internet. [8] To get some idea of the current attitudes of publishers and libraries, I have circulated a short questionnaire to those responsible for the approval of requests for reproduction of materials at a number of major institutions. I detail some specific responses later in this paper; the general situation is that the whole question is being reviewed on the basis of individual requests, so that a kind of "case law" is being developed. [9] All institutions are, understandably, cautious. It is my hope that sites such as the Internet Editions will be able to assist in the evolution of fair and reasonable guidelines for the original author, the institution that holds the copyright, the site that provides the material, and the browser who accesses the site.

Textual materials

A hypertext edition of a Shakespeare play should be able to offer substantial supporting resources: sources, analogues, performance history, and critical discussions of the play. Those texts which are from earlier centuries will be freely available for re-editing, but users of the Editions will want to have access to recent discussions of the play in addition to the editor's own critical essays.

One unexpected example of the complexity of the issue concerns the use of line references to locate passages in the plays. We are all familiar with the sometimes frustrating variety of line numberings used in references, all varying between editions because of the vagaries of typeface and the width of pages or columns, particularly in prose passages. One attractive alternative in an electronic edition is to use the widely-used Through Line Numbers published in the Norton facsimile of the First Folio as edited by Charlton Hinman. These line numbers, however, are the property of Norton. My hope is to use the TLN numbers as the universal linking label between editions and electronic versions of the plays (modern, quarto, Folio); I am in the process of negotiating with Norton for the use of the numbers as I write this paper.

Most scholars and many publishers are generous with their materials. My experience in asking individual scholars for permission to reprint their work in the readings for an on-line course I offer on Shakespeare is that they have all been pleased to have their work recognized and read. The experience of Ian Lancashire, who has assembled a wonderful anthology of early modern texts for inclusion on his TACT CD ROM [10] is equally encouraging; he was able to assemble a large number of machine-readable texts from a wide variety of sources.

Generally, however, the problem of copyright is more acute when it comes to making recently published critical materials available as part of an edition. There are a number of different approaches and options available. Presses and journals are beginning to make their works available on the Internet themselves, usually for a charge. A pioneer in this area is ELH, from the Johns Hopkins University Press, which offers a number of representative articles freely for on-line access, and has a charge for access to its full database. [11]

One attractive option that might be negotiated with presses of this kind would be to negotiate an extension of "fair use" that would allow editors to excerpt longer passages from articles (up to perhaps 1,000 words), on the condition that the passage would include a link to the publisher, where the full article could be accessed for a charge, or the printed work ordered. Cambridge University Press is considering the possibility of publishing some of its books on the Internet; Kevin Taylor, of their Reference and Electronic Publishing Unit, puts the case succinctly:

An issue here is whether or not we would be planning to put it up on our own Internet site for a charge. . . . Obviously we believe in as wide a dissemination as possible for an author's work, but we want to be able to protect his/her (and our) revenue in the process. Having it up at a charge on our own site wouldn't necessarily preclude reproduction, for a fee, on others' sites -- it would depend on the case. [12]

Graphics

Many of the same issues surface in the quest for supporting graphic materials for an edition. Unlike texts, however, the fact that a graphic was published in a work now out of copyright does not mean that it can be used. An out-of-copyright text can be put into machine readable form without restriction, but a graphic will always require the permission of the owner of the book. As public funding for libraries, galleries, and museums has decreased in recent years, these institutions have become more reliant on the revenues from reproduction rights and the sale of high quality prints for reproduction. Clearly, putting a high quality image on the Internet will make that image available for unscrupulous use, even if the owner of the image is clearly identified. Ben Bergonzi of the British Library Reproductions unit writes:

I can only comment on the policy of BL Reproductions, the British Library's photographic department. We do not currently permit customers to place our images on the Internet since we rely on Reproduction Rights Fees revenue which customers pay on a per-use basis. Last year we earned revenue in excess of £150K. from this source alone (excluding the sales of the photographs themselves.) This is needed to provide the Library with much needed funds so as to reduce pressure on our government grant. Obviously widespread Internet distribution threatens this revenue base. [13]

There are a number of possible ways for institutions to deal with this problem. The first is simply to make the materials available. The Furness Library at the University of Pennsylvania has already made high quality JPEG images of their copy of the First Folio available on the Internet, and there are a growing number of wonderful collections in other scholarly areas becoming available. [14]

This approach is available only to institutions with a mandate for public access, and a minimum threshold of trust in the publishing industry, however. Alternative strategies would involve making images available only in relatively low resolution, and embedding in them one of the increasingly sophisticated "watermark" processes that will reveal the source of the image even after a great deal of digital manipulation. Low resolution images of 72 dots per inch would be entirely suitable for on-screen display of many graphic materials, but would reprint in any print source with pronounced "jaggies" that would make them unattractive. Unscrupulous users might apply filters to the images to improve them somewhat, but they would inevitably pay the price of poorer reproduction than would be possible with a legitimate print. A watermark would provide a high probability of identifying a pirated copy, a chance which would probably be seen as a deterrent by most publishers. It is clear that not everyone feels that watermarks and low resolution would be an adequate safeguard, however; Joanna Dodsworth of the Bodleian Library comments: "An identifying watermark is no safeguard BEFORE the event, and of questionable use AFTER the event of unauthorized use of copyright images." [15]

The concerns raised by those who wish to avoid unauthorized use of images are both legitimate and pressing. I would comment, however, that is some ways the horse has already left the barn. An unscrupulous publisher in print or electronic media can now obtain high quality images of most Shakespearean material simply by scanning existing publications. The international nature of the Internet complicates the issue of policing by an order of magnitude, and the consistently resistant response of Internet users to far more legitimate forms of political control suggests that there is little recourse to deal with piracy of either a legitimately acquired image or one scanned from printed sources.

I would hope that the practice of placing reasonably good images on the Internet, coupled with acknowledgment and a link to the source of the image, would ultimately provide more revenue for the institutions than a policy of not allowing any images to be electronically reproduced. An example: on my own Shakespeare page there is an image of a printer's ornament, one of the many that appear in the First Folio; [16] I picked it up from the Net, and to my chagrin cannot now remember where. But I strongly suspect that it was scanned from the Norton facsimile, since that is the easiest place to find it. Since, however, the image itself will exist in many other places, and Folios are owned by many libraries, there is no way to trace its origin. In the final analysis it may be better to encourage responsible use of images, rather than to be unduly restrictive.

Video materials

Initially the emphasis of the Internet Editions will be on text and graphics, since video requires wider bandwidth, and it will be some time before there is a large enough audience for video clips of performances. But in due course they could provide both a significant archive of performance data and a powerful teaching tool, as parallel scenes from different performances become available. Blessed -- or bemused -- as we are by a new generation of Shakespeare movies of startlingly contrasting styles, the hope would of course be that we would be able to offer some kind of "fair use" footage from major movies both present and past. But again the issue is both complex and in flux in different countries. Peter Donaldson's pioneering work interconnecting text and visual materials is made possible by using videodisk -- which means that the copyright is included -- coupled with restricted access to the site. [17] It is difficult to imagine any alternative to this approach in the foreseeable future for any extensive use of video

Movies are the result of a collective endeavor, rather like Shakespeare's original productions -- or perhaps (ratherest) more like those of Henslowe's company, with its central impresario and star system. And indeed some of the same economic motives drive the complex business of copyright permissions in the industry, as those of us who have tried to acquire video clips for CD ROMs will attest. The pioneering Macbeth of A.R. Braunmiller and Voyager was to have had a full video version of the play, but "a rights conflict between Voyager and the RSC lead to its replacement with the audio track," [18] and my own attempts to get permission for video footage for Shakespeare's Life and Times were so complex that I finally had to content myself with the generously provided footage of Ben Jonson's Oberon as performed at Case Western Reserve University, and some Elizabethan dancing from the Ashland Shakespeare Festival Green Show. CD ROMs that feature footage from major movies are likely in the near future to be the product of large collectives such as Microsoft, talking to other large collectives in the movie industry.

A more modest, and perhaps more realistic initial stage would be to look to the many good quality festivals and schools of drama that put on Shakespeare performances each year, and invite them to submit footage of their productions for review, together with program notes and any other materials the director would like to be made available. Inclusion in the ISE video archives would become both an advertisement for the company, and a sign of quality, since the performances would undergo an equivalent of the process of refereeing that all other materials on the site will be subjected to. Michael Mullin's forthcoming CD ROM on Shakespeare in performance will use extensive video materials gathered in a very similar way. [19]

Eventually fair use guidelines will be established in a way that both protects the investment of those who create the materials and provides reasonable access to those who use them for critical and educational purposes. The Internet has increased, by a quantum leap, the accessibility of all kinds of creative and scholarly materials; we are no longer in a world where the most effective form of copyright was to keep a manuscript from falling into the hands of a printer. We must hope that the owners of copyright recognize the value of making sections of larger works available to responsible Internet sites. Increased access can only bring benefit: to the student, the scholar, and the holder of copyright, since the fair use of materials constitutes a kind of advertisement.

The Internet Shakespeare Editions will undertake two strategies for making the widest range of materials available to those who consult them: where possible we will negotiate with individuals and institutions for permission to use materials, either in full or fair use samples; and we will create alternative solutions where necessary, editing texts from scratch, using out-of-copyright sources, and tapping into the substantial goodwill of the acting and scholarly communities for providing new, high quality works in all the media now available. The politics of copyright have changed surprisingly little since the Stationers Company ceased being the recorder and arbiter of possession. The competing interests of access and profitability remain, complicated by the global reach of the Internet, and an increasing need for institutions to look to copyright and reproduction fees to finance their collections. It must be our aim to make it possible for the Internet to fulfil its promise of being a storehouse of scholarly bounty. And if that seems a rather overstated metaphor, don't blame me.

Let those whom Nature hath not made for store,
 Harsh, featureless and rude, barrenly perish:
 Look, whom she best endow'd she gave the more;
 Which bounteous gift thou shouldst in bounty cherish:
 She carved thee for her seal, and meant thereby
 Thou shouldst print more, not let that copy die.
 (Sonnet 11)

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---------------------------------- Notes ----------------------------------

[1] "The Problem of Shakespeare's Text(s)." Shakespeare Jahrbuch 132 (Verlag Ferdinand Kamp: Leipzig, 1996) 26-43. [Back]

[2] In the Introduction to Ann-Marie MacDonald's witty play Goodnight Desdemona, Good Morning Juliet, Banuta Rubess writes, "The script we received on the first day of rehearsal was far more weighty, complex, and erudite than anyone had expected. . . . The paltry three weeks we had for rehearsal were a wild scramble to workshop the script and get it on stage. . . it is really only now, more than a year later, that I can relish the play as a theatrical event. . . the text has settled down, the characters have been refined, and the play can be explored." Goodnight Desdemona, Good Morning Juliet (Coach House Press: Toronto, 1990), 7-8. [Back]

[3] I am referring of course to the multiple-text plays like Hamlet and Faustus. There is an interesting parallel with the prevailing attitude among musicians as late as the early eighteenth century, though by its nature the composition of music was an individual endeavor. Among his other works, the Italian composer Alessandro Marcello (c. 1684-c. 1750) composed an Oboe Concerto in D minor. Antonio Vivaldi (1678-1741) transcribed the concerto for strings; Johann Sebastian Bach (1685-1750) transcribed it among several of Vivaldi's string works he adapted for harpsichord, in the process (as was his habit) transposing it down a tone to C minor and adding embellishments. For many years the work was ascribed to Alessandro's brother Benedetto (1686-1739), under whose name the oboe concerto was known -- in the C minor version.

One could add perhaps that all modern editions of Shakespeare are collaborative works, as editors collate the efforts of their predecessors, consider their arguments, and ingeniously avoid repeating the exact words of earlier editors in preparing notes and commentary in order to prove originality and avoid infringing copyright. [Back]

[4] Rose 26. In the dedications to both Every Man Out of His Humour and Cataline in his 1616 volume of the Works, Jonson refers to the ensuing play as a "Poeme." The Workes of Beniamin Jonson, 1616 (London: Scolar Press, 1976) G2, Kkk5. [Back]

[5] A useful gateway to discussions about copyright is Copyright and Fair Use, Stanford University, http://fairuse.stanford.edu/. The National Initiative for a Networked Cultural Heritage (NINCH) fosters discussion and maintains an excellent page at http://www-ninch.cni.org/. [Back]

[6] On legal challenges to freedom of information on the Internet, see the article "Surfing Prohibited," _New Scientist_ 153 (25 January, 1997): 28-31. [Back]

[7] Internet Shakespeare Editions, http://web.uvic.ca/shakespeare. [Back]

[8] See, for example, the electronic journal Cyberspace Law 03: Copyright 2: PRETTY MUCH ALL WRITINGS ARE COPYRIGHTED by Larry Lessig, David Post, and Eugene Volokh (6 July, 1996) and subsequent issues; http://www.cli.org. [Back]

[9] A typical and thoughtful response comes from Richard Kuhta of the Folger Shakespeare Library:

I believe many libraries recognize the field of electronic access is still pretty imprecise, in terms of legislation, and will continue to proceed with some caution for a good while yet. Our "policy" therefore, at present, is to work on a case by case basis, documenting each decision, learning from those instances where we've taken a less than ideal stance, and conferring with peer institutions along the way. Admittedly, we are being cautious, but I believe with good reason.

[Back]

[10] Ian Lancashire in collaboration with John Bradley, Willard McCarty, Michael Stairs, and T. R. Wooldridge. Using TACT with Electronic Texts. New York: MLA, 1996. [Back]

[11] A pioneer in our area is ELH, from the Johns Hopkins University Press, which offers a number of representative articles freely for on-line access, and has a charge for access to its full database. [The publishers' statement can be found at http://128.220.50.88/journals/elh/publishers_statement.html.] [Back]

[12] Private email message of 10 February, 1997. [Back]

[13] Private email message of 4 February, 1997. [Back]

[14] Two examples of many: The National Library of Australia, "Hanging out the Pictures." offers thumbnails and larger JPEG images of their collection "in a range of formats: books, pictures, manuscripts, oral history recordings, maps and music." http://www.nla.gov.au/nla/staffpaper/jthomp2.html. The Library of Congress provides a high quality image of Abraham Lincoln's Gettysburg Address from the Nicolay draft at http://lcweb.loc.gov/exhibits/G.Address/frstdrt1.jpg. The site includes this copyright notice: "WARNING / The text and images in this exhibit are for the personal use of students, scholars, and the public. Any commercial use or publication of them is strictly prohibited." [Back]

[15] Private email of 5 February, 1997. [Back]

[16] It is on the home page for the Internet Editions: http://web.uvic.ca/shakespeare. [Back]

[17] An altogether unjustified bonus from the lateness of this essay is that the paper by Peter Donaldson for this seminar arrived in my mailbox this morning: "Digital Facsimiles and Electronic Shakespeare." He makes precisely this point in his third paragraph. [Back]

[18] Posting to the SHAKSPER discussion group by Michael E. Cohen <lymond@netcom.com>, Thursday, 8 Dec 1994. [Back]

[19] Our Shakespeares: Shakespeare across Cultures, a combination book and CD ROM forthcoming from the University of Illinois Press. [Back]

------------------------------ Works Cited ------------------------------

• Dryden, John. Dryden: Poetry, Prose and Plays. Ed. Douglas Grant. London: Rupert Hart-Davis, 1952.
• Patterson, L. R. Copyright in Historical Perspective. Nashville: Vanderbilt University Press, 1968.
• Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, Mass: Harvard University Press, 1993.