Freedom of Expression and Copyright, The Foundations of All Liberties

Intellectual Property is a crucial asset in modern economy, hence in the modern world that is being globalized thanks to the far-reaching development of networks, the cloud, and even the intercloud of Kevin Kelly. The only regulatory force is Copyright (and Patents for inventions).

This volume starts exploring the emergence of freedoms in the western world in 1100 in England and follows it till 2016 in the world, though the approach is centered on the USA, hence with Copyright and Fair Use, the former being meaningless without the latter which is the recognition of the moral rights of the author, moral rights that plunge their roots in the common law of intellectual property, moral rights that are perpetual.

This volume only contains the commentary and reflections based on the numerous documents. I have collected all the documents in one file that I have uploaded on a research site and it is free and open access. The documents collected there are under fair use and they are all available on the Internet anyway. The file containing the documents can be reached at https://www.academia.edu/31829015/Freedom_of_Expression_and_Copyright_The_Foundations_of_All_Liberties.

You can of course neglect going to the documents (550 pages and 443,000 words. But then you will have to take my word for everything I say, which is not the best thing to do. Do check the documents.

The general idea is that freedom of expression is the first freedom to develop since there cannot be any discussion, negotiation or bargaining if that freedom does not exist. The crucial event showing the emergence of this freedom as a freedom for all and not as a privilege for a few is the abolition of slavery which took place in Christian Europe after the religious reform of the 9th century and Charlemagne. This reform introduced 75 days of no-work-at-all for religious reasons: fifty-two Sundays and three week-long feasts: Nativity, Passion and Assumption, plus a few isolated days here and there.

This reform required a complete restructuring of society, and first of all agriculture. The green revolution it implied and caused required some homogeneous land ownership and status for all field workers. That was feudalism: the land was the property of barons (up to the King or Emperor) and church orders and parishes, and above all Benedictines. That implied then the proto-industrial revolution of the watermills in order to replace and compensate for human work.

Copyright was invented as a censorship tool in 1557 by Queen Mary 1st, and confirmed by Elizabeth 1st. This censorship of printed matters in England was paramount all along and through the 17th century. It is only Queen Anne in 1710 with her Statute of Anne who liberated publishing from this censorship and gave copyright to the sole authors; That determined a tremendous freedom of expression, and the first printed press. It also gave rise to tremendous innovation with engravings and etchings: England finally caught up on the Germans and the Dutch, mainly though not only.

But this copyright remained limited because it did not recognize the moral rights of the author, since intellectual property that is perpetual in common law was declared repealed by the first publication of any work that cast the work entirely in the only economic or patrimonial, plainly commercial dimension. That has practically not changed in Great Britain since the decision of the House of Lords of 1774.

The USA did things differently and they kept the common law active. It took them to move from a copy-cat legislation (inscribed in the Constitution itself) reproducing the English legislation to change around the middle of the 19th century and the emergence of moral rights under the concept of "fair use" that will only be integrated in the Copyright Act of 1976. And that's where we stand today: copyright + Fair Use are the best protection possible of intellectual property in the world.

Dr. Jacques COULARDEAU