As any student of copyright knows, we can trace copyright law back to the Statute of Anne in 1709, (entered into force on April 10, 1710 as the Copyright Act of 1710), when the British Parliament passed the first legislation to protect the rights of British book publishers. The initial period of protection was 14 years. According to “commonly accepted wisdom” (i.e. Wikipedia), this was the first statute to provide for copyright regulated by the government and the courts, rather than by private parties. From there, copyright law evolved into the national and international regime that we know today, including its inclusion in the US constitution as Article 1.Section 8. Clause 8., giving to Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Is the Statute of Anne the first legislation to protect copyright as the expression and reproduction of ideas and images? I always thought so. After all, that was what Wikipedia said so it must be true!
In fact, if one digs a little deeper, one discovers a treasure trove of studies relating to earlier copyright, predating the Statute of Anne by at least a couple of centuries. The Republic of Venice, a centre for book publishing in the 15th and 16th centuries was particularly active in granting a “privilegio” to certain publishers to print a particular text, to prevent other from importing the text and to certain bookshops to sell a certain text. But the privilegio was not just limited to printers and publishers although that was the most common form of “copyright”.
In what is considered the foundation work on the topic of Venetian printing, Horatio Brown in his 1891 opus “The Venetian Printing Press” notes that in 1486 the Venetian “College” (Cabinet) bestowed upon one Marc’ Antonio Sabellico the sole right to authorize the publication of his work on the history of the Republic, under penalty of a fine of 500 ducats. He states that this was the first instance in which the government recognized an author’s literary proprietorship in his own work. Thereafter it was not uncommon for authors to have exclusive rights to their own works although it was more common for these rights to be vested in printers. Copyright was not automatic; it had to be applied for, was not always granted and if granted was usually granted to the first applicant. Other forms of copyright related to printed images, woodcuts, engravings and etchings. It appears that the rights were conferred on the engraver (sometimes the artist) and more commonly the printer. The Holy See was particularly prolific in granting copyrights, on supplication to the Pope.
All this shows that there were various forms of copyright in existence in the Renaissance period in Italy. (For a good summary of the evolution of copyright in Venice see Gavin Keeney’s essay published in Intellectual Property Watch here.) Perhaps these were these the first copyright laws? Was it time to correct Wikipedia? Then I stumbled on the ius imaginum, the “right of image”, in ancient Rome.
When I was in Italy this past summer looking at busts and statues of Roman notables, I came across this explanation of the ius imaginum in the Palazzo Massimo, part of the National Museum of Rome.
“Portraits, formerly the preserve of aristocratic families, were an exclusive right to an image and governed by a group of regulations known as the “ius imaginum”; they quickly spread as an art form particularly in the age of Sulla (1st C. BC.), following a tradition of portraiture which is attested to by the custom of exhibiting wax masks of ancestors, like a genealogical tree, in the entrances of Roman homes”.
The English translation appears a bit stilted but it seems that there was a Roman law granting the exclusive right to create and display images (of ancestors) to certain identified individuals, namely those holding the office of higher magistrate known as aedile, or magistratus cerules. Only those holding this position were granted the exclusive right to produce and display family portraits. Can we equate this early law giving “rights-holders” the right to produce and display images with copyright? It may be a stretch but in the pursuit of truth, I set out to learn more about the Roman “right to image”. Like most things, it’s complicated.
As I delved into the background of ius imaginum, I realized that I had stepped right into the middle of a vigorous academic debate conducted by classical scholars about the “right to image”. It is accepted that the term itself was coined in the 16th Century and was based on the writings of Cicero. (106 to 43 BC). If Cicero described the phenomenon, that would be good enough for me, but then I am not a classical scholar. His description, it turns out, is quite controversial in certain academic circles. One learned treatise described the ius imaginum as a “scholarly fabrication from two Ciceronian passages already skeptically regarded” (Bryn Mawr Classical Review, 2004.06.27). Another (John R. Clarke, Art in the Lives of Ordinary Romans, U. California Press, 2006) says that the “ius imaginum did not exist with the meaning assigned to it by modern literature and may possibly be a completely modern invention”.
Wow, who knew? So, at the very least, it seems that it’s not clear whether this particular ius (right) was conferred by law or just accepted as a privilege of certain elite groups, and it is also not uncontested that the right of image was held exclusively by higher magistrates; it could have applied to the nobility in general. Whatever the facts, it keeps classical scholars busy debating and debunking.
I don’t have a position one way or the other, although if it’s good enough for the National Museum of Rome, it is good enough for me. What does seem widely accepted is that there was some sort of exclusive right or privilege granted to a certain class in ancient Rome to produce images (of their ancestors) and to display those images, a right denied to others. The forms were initially wax death masks which became stone or marble busts or “portraits”. The images themselves are striking; one has the impression of looking into the eyes (normally blank) of someone who could be a neighbour or colleague at work, not someone dead for two millennia.
There are parallels of this “right to image” with modern copyright concepts, and there are differences. The exclusive right to produce images goes against our modern democratic principles of encouraging creativity from a multiplicity of creators, but the exclusive right to display them (communication to the public? making available? reproduction?) is not alien. Of course, the Roman rights-holder was the family of the subject, not the artist. The artists, for the most part, are unknown and these portraits are like commissioned works (works for hire) owned by the person who commissioned and paid for the work.
Presumably no one would want to make an illicit copy or worse yet, pass off a noble family’s ancestor as the scion of another family, thus piracy was not an intruder into this world (although the Romans themselves happily copied Greek models willy-nilly). It also appears that the right to image became “democratized” and popularized and in time even the hoi-polloi were commissioning portraits.
It is worth going back to basic principles of copyright for a moment. Exclusivity has always conferred a certain cachet, and often economic benefit, on objects or works. A mass produced work of art is not as valuable as a numbered print, not to speak of an original. The rights-holder, today normally the creator of the work, whether a work of art, a work of literature, a musical composition or other form of creation, should have the right to determine the form and degree of exposure of that work, and thus its economic value. The creator needs these basic rights in order to exploit the full potential of the work as he or she sees fit, whether by licensing the rights for commercial use under specified circumstances, or by licensing it for use by all without remuneration, with various variations in between. That is a creator’s right, seen as a fundamental right in some jurisdictions, and as an economic right in others. In contemporary law that right is time-limited, and is subject to various limitations to allow others certain uses of the material without permission or compensation (the source of much debate) under specified circumstances. These exceptions to absolute exclusivity also allow creators themselves to build on the work of those who have preceded them.
That is how things have evolved, but it all goes back to the fundamental principle of possessing rights, both moral and economic, in intellectual property. In the case of the ius imaginum, the concept of having rights to an image seems to go back to the early history of western civilization, to ancient Rome, if not before. The Statute of Anne was important is getting the principles of copyright protection enacted in British common law and Article 1.8.8 of the US Constitution is an important milestone in the legal protection of creativity. But let’s not forget their ancient antecedents, the Republic of Venice during the early Renaissance and before that, ancient Rome at the time of the Empire.
© Hugh Stephens, 2018. All Rights Reserved.
This blog first appeared on the site of the Copyright Alliance as part of their “Secret History of Copyright” series.