In common law countries, the term of protection granted by copyright has been steadily growing ever since its advent in the eighteenth century, yet the benefits of these term extensions has been vigorously debated. A new study by Meghan McGarvie and Petra Mosner, however, provides evidence that payment to authors by London publishers significantly increased following a statutory increase in term limits granted in 1814. Before anyone rushes to change Canadian legislation, this study must be carefully understood within a broader historical context.
The McGarvie and Mosner paper takes advantage of new resources provided by British Fiction 1800-1829: A Database of Production Circulation & Reception, a resource which allowed the authors to compile a systematic data set consisting of payments to authors for first edition print runs in the early part of the nineteenth century. The lion’s share of data comes from Longman & Co, the London publisher of some of Sir Walter Scott’s novels – one of the most popular authors in history.
Scott’s career straddled a significant change to copyright law in Britain. The UK Copyright Act of 1814 increased term limits to 28 years, or the rest of an author’s life (if he or she were still living at the end of the term). One effect of this extension was that individual authors now had a more substantial right to sell to publishers. These authors could therefore demand higher rates of compensation in exchange for the exclusive licences often granted to publishers as a matter of course.
The results of this study are quite persuasive: following the increase in term limits, the average payment to authors nearly tripled. The authors note that some of this increase is driven by the inordinately large sums of money paid to Sir Walter Scott, as in the nineteenth century, famous authors received considerably more money for their work (a strong parallel with the situation today). Yet even excluding the payments to Scott, McGarvie and Mosner show that payments to the average author nearly doubled in the period following the 1814 increase.
Not everyone was able to benefit from the increase in copyright. As records on the British Fiction database suggest, Jane Austen was regularly disappointed in the terms offered for the sale of the copyright in her novels. In a letter to her sister, she notes with disappointment the deal offered by John Murray, her publisher for her novel Emma:
“Mr Murray’s Letter is come; he is a Rogue of course, but a civil one. He offers £450 – but wants to have the copyright of MP [Mansfield Park] & S&S [Sense and Sensibility]. It will end in my publishing for myself, I dare say.”
The authors urge caution, however, in using the study to make assumptions about current copyright term limits. The nineteenth century creative industry, after all, bears significant differences from our own:
It is important to keep in mind that the 1814 Act increased the length of copyright starting from a low base of pre-existing rights at 14 and 28 years. By comparison, modern changes increase the length of copyright starting from a high base of pre-existing rights, at 50 years or more beyond the death of authors. At extremely high levels of pre-existing rights, the incentive effects of an additional year are likely to be small. The costs of stronger copyrights in terms of limiting diffusion, however, may be substantial.
McGarvie and Mosner also emphasize that the study shows correlation and not causation. While the extension of copyright may be one factor that led to increased payments to authors, it is important to keep in mind the rapidly changing nature of industry and technology in early-nineteenth century England. The creation of modern finance allowed publishing houses to effectively borrow capital in order to increase their output; developments in paper-making technology probably helped reduce production costs; and the development of railways allowed all consumer goods to be sold in increasingly expansive geographical markets. Just like today, legal protections are meant to protect creative industries and incentivize production – but they do not provide a complete picture of the marketplace.
David Bowden is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.