Who knew? The humble Epsom salts your grandmother softened the bathwater with were the subject of a ferocious 18th-century trade battle between piratical purveyors of counterfeit salts and the manufacturer of the genuine article. And the wildly popular kaleidoscope, that "device for rational amusement," new on the scene in 1817, was so brazenly pirated in the marketplace that its inventor could only deplore the uselessness of his patent.
You might question the relevance of such ancient and obscure intellectual property matters for more current issues, such as illegal file-sharing. But Adrian Johns, a professor of history at the University of Chicago and a specialist in the history of science, media, the book and piracy, believes that we cannot even ask the right questions of our own culture, let alone answer them, without understanding how piracy and intellectual property took shape over the centuries since the invention of the printing press.
In Piracy: The Intellectual Property Wars from Gutenberg to Gates, Johns takes us exploring through centuries of bitter feuds over books, inventions and scientific discoveries, feuds that played out in the street of Restoration London, the print shops of Edinburgh and the august halls of the Royal Society of London. He illustrates how our ideas of intellectual property evolved through the rough and tumble of battles over proprietary rights in these things, considering everything from 17th-century elixirs of boiled dog to oscillating radio antennas.
Along the way, Johns tries to demonstrate that intellectual property concepts of each era are deeply rooted in theories of economics, trade, science and civil society. He offers these historical examples, ultimately, as a perspective from which to define the key issue in intellectual property today; that is, the proper relation between commerce and creativity.
But why is Johns talking about a history of piracy, as opposed to a history of intellectual property law? According to him, the modern concept of intellectual property did not even exist prior to the mid-19th century, by which point, he says, there had already been 150 years of piracy. More pointedly, he argues that virtually all the central principles of intellectual property were developed in response to piratical acts. It is conflict over piracy, and the measures taken against it, he says, that forces society to define and defend, adapt or abandon, strongly held ideals of authorship, public discourse, science and dissemination of knowledge. Piracy is, from this perspective, central to the emergence of the modern information society.
This is a rather interesting take on matters. And Johns sets out to demonstrate the truth of it in a dense and detailed episodic history, rich in context, full of arcane facts and venerable arguments that have continuing resonance in the present.
We learn, for example, that the Golden Age of Piracy - the seafaring kind, that is - coincided with the heyday of literary piracy in England. Between the lapse of the Stationers Company's monopoly on printing in 1695, and the passage in 1709 of the Statute of Anne (the first copyright act), no legal sanctions protected publishers or authors against unauthorized reprinting of books. Reprinters thrived. They argued that they were acting in the public interest by issuing books at affordable prices; they were "midwives of genius," printing books that would otherwise go unpublished.
It was then, in fact, that the term "piracy" first came to be applied to unauthorized commercial copying.
And throughout the 18th century, the absence of any copyright law in Ireland allowed the reprint-based Dublin book industry to prosper. But when union with England brought copyright to Ireland in 1801, many Irish printers and booksellers emigrated to the United States, where they founded the U.S. publishing industry, instituted the familiar Dublin practice of reprinting books, and so inaugurated the century of piracy that built American arts and letters.
It is intriguing to discover the role that various icons of literary fame played in these disputes. We learn, for example, that Anthony Trollope called for international copyright with the United States to put an end to the pirating of British books (his own among them). And John Stuart Mill waded into an intense anti-patent debate in the mid-Victorian era, arguing that to abolish patents would "enthrone free stealing under the prostituted name of free trade" and leave "men of brains" defenceless before "men of money-bags."
Piracy goes on, of course, to take us into the modern era of piratical recordings, ham radios, telephony, computer hacking and universal digital libraries.
Johns's descriptions of commercial contretemps from history form a fine resource and provide a unique perspective on the centuries that took us from movable type to Microsoft. But he does not blaze a thematic trail through the historical detail that is easy for the reader to follow. We are largely left to ourselves to figure out the critical implications of these intellectual property battles for the present day. What are those questions Johns says we should ask of our own culture in the light of the past, and what are the answers?
This is not to say that Johns draws no conclusions. As he says himself in his last chapter, "A story has been unfolding quietly between the lines of this book."
Citing the exponential growth of piracy on digital networks, and the emergence since the 1970s of a coherent, global and technologically adept anti-piracy front, Johns speculates that we ourselves may now be facing a crisis of epochal magnitude, a revolution with the potential to make "a radical shift in the relationship between creativity and commerce," maybe even bringing down the citadel of intellectual property itself.
A change of this scope does not faze Johns. Since intellectual property is a relatively recent concept, he says, "it ought to be possible to conceive of an alternative to it that suits the 21st century rather than the 19th." Coming up with that alternative, however, awaits some other book.
Grace Westcott is a lawyer and vice-chairwoman of the Canadian Copyright Institute.