From Gunpowder to Print: The Common Origins of Copyright and Patent



A closer look at the historical relationship between copyright and patents reveals the common origins of these two institutions.


By Dr. Joanna Kostylo
Professor of Early Modern History
British School at Rome


Introduction

In Venice, as I heard, and in many places beyond the sea, they reward and cherish every man that brings in any new art or mystery whereby the people may be set to work. – Sir Thomas Smyth, Discourse on the Common Weal of this Realm of England (1581)

The history of intellectual property has been subject to much revision in recent years. It no longer appears to be the domain of legal studies alone but has become a focus of inquiry across diverse fields and disciplines. Most of this work has focused on copyright, while the history of patents remains largely unexplored by this burgeoning area of cross-disciplinary studies. This is partially due to the traditional legal taxonomy which distinguishes sharply between these two institutions, a taxonomy which took root from the eighteenth century onwards.[1] This paper challenges this distinction by exploring some early developments and cross-fertilisation between these two fields.

A closer look at the historical relationship between copyright and patents reveals the common origins of these two institutions. Before exploring these common origins however it is important to make a distinction between modern intellectual property law and the ancient system of privileges. In contrast to modern copyright and patent, early privileges were conceived as a form of municipal favour (gratiae) and an exception to the law (priva lex) rather than the recognition of the author’s inherent rights. Such privilegia took various forms, from exclusive monopolies permitting the inventors or introducers of a new technology the right to exploit their trade or engage in other productive activity, to printing privileges bestowing the publishers or authors with the exclusive rights to print and sell a work. These two types of privileges would later be identified as patents for inventions and proto-copyrights respectively but in the early stage of their development there was little differentiation between the two. This original lack of differentiation can be explained by two factors: legal (institutional) and cultural (ideological). In legal terms, the early printing privileges and grants for mechanical inventions were virtually indistinguishable: they had not developed separate bureaucratic regimes and both continued to rely on the same mechanism of ad-hoc discretionary privileges. They were both awarded on the same basis, in order to offer protection from competition and secure returns on an initial investment. On the cultural and intellectual level, this convergence could be explained by the manner in which the subject matter of copyright protection initially developed, focusing first on the material realm of printing technology before it expanded to less material objects of protection. These developments have their roots in Renaissance Italy.

The Renaissance period is a particularly interesting moment in the history of intellectual property, since many developments – technological, economic, institutional, legal, cultural, intellectual, and ideological – had converged in this period to produce a unique environment in which new attitudes towards authorship, intellectual production and ownership would evolve. Paradoxically, as this article will argue, these new attitudes towards creative production did not spring from the immaterial realm of ideas and books but from the very material world of craftsmanship and mechanical inventions. Similarly, the history of authorship is not exclusively concerned with authors and readers of texts but must be explored from a wider perspective of contemporary arts, crafts, music, painting and print making, as well as the aesthetic theories of Italian humanism that influenced these various disciplines. This article brings together these various strands of research to identify the diverse ways in which the rhetoric of authorship developed in different contexts and within specific modes of production.[2]

The First Printing Monopolies in Europe

Johannes de Spira (right) Becomes the First Printer in Venice (September 1469)

Several lines in the genealogy of copyright have been traced to fifteenth century Venice – the home of the first printing privileges. The earliest and most famous patent was a five-year monopoly granted on 18 September 1469 to a German print master Johannes of Speyer to establish a press and foster printing within the Venetian Republic.[3] Although this monopoly has been hailed as the first known patent pioneering a long tradition of granting printing privileges in Europe, Speyer’s monopoly does not appear as something new or exceptional in the economic life and legal tradition of Venice. Ever since the thirteenth century, the Venetians led Europe in their efforts to attract foreign expertise by granting monopoly rights to immigrants who brought with them new skills and techniques to the city. When Speyer reached Venice, the city had already become a vibrant centre of innovation and technology and, while the Venetians may not have been the first to introduce print in Italy, they were quick to recognise the importance of the new craft. Thus when a skilled German master appeared before the Venetian Collegio and promised to introduce a new faster and cheaper way of producing books the councillors did not pass on the opportunity to secure his services. They were careful to stress that ’such an innovation, unique and particular to our age and entirely unknown to those ancients, must be supported and nourished with all our goodwill and resources’. They considered that ’his art of printing’ was ’something to be expanded rather than something to be abandoned’, and granted Speyer an extensive monopoly over the entire art of printing for five years in Venice and its dominions – measures, they explained, that had been adopted for years in supporting other and much smaller enterprises. The councillors, therefore, made little distinction between Speyer’s petition to operate a printing press and other requests for a concession to exercise a new enterprise or to work a new invention, requests which were regularly submitted to the various magistracies of the Venetian state.[4]

Indeed, throughout the fifteenth and sixteenth centuries the Venetian government received in excess of a thousand petitions from experts in various fields: makers of soap, of gunpowder and saltpetre, of glass, tanners, miners, metallurgists and civil engineers.[5] These petitions cover every imaginable subject, from devices for draining marshes to windmills and poisons, or culinary experiments such as special kinds of lasagne in an Apulian style and new types of dumplings filled with meat and fish.[6] In this regard, Speyer’s monopoly appears to have been simply the application of a familiar administrative mechanism for granting monopolies that had already been at work in Venice for some considerable time. These ad hoc privileges were instituted to offer fixed-term exclusive monopolies to inventors and entrepreneurs initiating new technologies or products, and would later be identified as patents for inventions.

Speyer’s monopoly was hardly distinguishable from the industrial privileges typically granted by the Venetian government in that it was awarded over an exercise of a new technological innovation rather than the works printed as a result of the same, as would be the case with later printing privileges. This grant was therefore part of the general framework of governmental support for, and regulation of, industry. That is, the world of the press developed as an industry governed by the same rules as other trades exercised in Venice and, initially, press products were not distinguished from other industrial products. Books were treated in more or less the same way as any other piece of merchandise: they were valued by weight at the customs just like any commodity and they were used as a barter payment to purchase wine, oil, flour and other industrial products. Indeed, the invention of the printing press itself could be seen as an adaptation of the wine or olive press, or any of the other industrial devices that used the technique of a screw press.

However, in contrast to other medieval crafts, this new art of printing developed outside the guild structure, and therefore in the absence of any administrative body regulating the control and operation of that particular trade. In fact, the Venetians did not organise the printing and publishing trade into a closed corporation until 1549. So, for the first eighty years of printing in Venice, printing privileges continued to be granted sporadically and on an ad hoc basis.[7] Thus, any early differentiation between industrial monopolies and proto-copyrights that might be attributable to the existence of a well-organised guild dedicated to regulating the operation of the book trade did not take place in early modern Venice. Moreover, even after the chartering of the Venetian Guild of Printers and Booksellers in 1549, the guild failed to develop a separate bureaucratic regime and the regulation of the trade continued to rely upon these ad hoc discretionary measures, following the traditional form of industrial privileges dispensed by the Venetian government in a variety of economic fields.[8]

Aldus Pius Manutius / Wikimedia Commons

There was also convergence between book privileges and privileges for mechanical inventions during this period in relation to the sphere of protected subject matter. Many of the early book-related privileges were granted for innovations in printing technology and type-design, as with the case of the monopolies granted to Aldus Manutius between 1496 and 1502 for the italic typeface and the new systems of printing Greek, or the privileges for an improved method of printing music introduced by Ottaviano Petrucci (in 1498) and the chiaroscuro technique introduced by the printmaker Ugo da Carpi (in 1516).[9] These privileges were concerned with printing technology, techniques of production, book layout, type of fonts and other material aspects of the book. This type of privilege was therefore conceptually very close to those regulating monopolies for mechanical inventions or processes of production. For example, the privileges of Aldus Manutius concerning his cursive type and the pocket-size book format were granted on the basis of how a text looked rather than what it said. They aimed to protect him from the unauthorised imitation of the format, type and ornament of imprints rather than the appropriation of the actual text itself. In 1501, Manutius launched his series of classic authors in octavo, employing a new cursive type which later came to be called italic. The innovation proved epochal in regard to both the reduced format, permitting a price reduction and the introduction of italic, which would eventually overshadow the international gothic type. Aldus Manutius was fully aware of the revolution his editions of classics in octavo format and italic type were ushering onto the book market. He wrote to the humanist Marino Sanudo, in a dedication of his edition of Horace (1501), that such a pocket-sized book could be read at leisure, encouraging him to read his books whenever he was free from political engagements. Similarly, he suggested to captain Bartolomeo d’Alviano that he could take such small-format books to the battlefield.

Aldus’s remarkable success quickly attracted the attention of competitors who counterfeited his books in cheap and hastily produced editions in Venice, Brescia, and Lyon. In his Warning Against Lyonnais Counterfeiters (1503), Aldus denounced the printers of Lyon, whose imitations of his Virgil, Horace, and other ancient classics: ’deceived unwary buyers both with the similarity of the letters and the format of the volume very similar to my own, so that they were tricked to believe that the books have been printed under my care in Venice’. He complained that all counterfeited editions were forgeries of the poorest quality: ’ [t]he lettering, upon closer inspection, betrays a certain Frenchiness’; ’in the same way upper case letters are misshapen’. Moreover, they were produced on foul paper, ’with [a] strange odour’, and with many errors.[10]

In protecting his innovative editions of classics, Aldus was primarily concerned with the physical appearance of the work – the format and the accuracy of its presentation – rather than with its intellectual content or with the authorship of the same. It is understandable that in the case of well-known texts which had already been published many times, only a new font or format could qualify for privilege protection. Deciding the question as to what was worthy of protection was complicated at a time when privileges were granted for translations, abridgments, editions of the ancient authors and classics or for the Latin grammars, law books, catechisms and almanacs – in other words, for the categories of works which underwent continuous revision and improvement, works that could not be attributed to any individual author.[11] A well-known text could be abridged, lengthened, or refurbished (corrected) and reclaimed as new. In a petition of 1 March 1533, for example, the editor Marcangelo Accursio emphasised that he corrected his edition of ’Arumiano Marcellino’ in ’five thousand places’ and refurbished the work with several new additions.[12] While some printers resorted to evasive tactics of making minor alterations and additions and claiming that the work was ’new’, others applied for privileges in derogation of the earlier claims. In 1502, for example, Andrea Torresani asked for a privilege for all the work of Scotus, Aquinas, Origen, Savonarola and other authors emphasising that he wished to obtain the privilege ’despite the concession’ (’non obstante concessione’) which must have already been claimed on these authors by others.[13] Sometimes, even the magistrates themselves did not know whether a book had been given a privilege before, or if it was still in effect, and granted a new concession without taking into account previous privilege holders. This is why they often added to the new privileges the clause ’dummodo aliis pro similli-bus libris prius concessum non fuerit’ or ’cum conditione, quod nulli antea fuerit concessum hoc idem’.[14] In order to cut down on these practices, the Venetian Senate issued a series of decrees which made more stringent rules for obtaining privileges. A Decree of 1517 revoked all existing privileges and established the principle of the public domain for all the books already in print (’libri comuni’).[15] Subsequent provisions of 1534 and 1537 set out further restrictions, limiting the duration of the privileges to ten years and reiterating that only works which had not been previously published as a whole qualified as new. This new privilege regime put pressure on the printers to seek new publishable material and oriented the market towards ’new’ and ’original’ works. With this shift towards contemporary texts and author-centred works, the question of protecting the content of the book, rather than its format, font or novelty of edition, began to gain greater weight. Boundaries of protection expanded beyond the sphere of verbatim reproduction in order to avoid evasions by additions, compilations and mutilations of the actual text. Similarly, verbatim reproductions, disguised in a different format or font, were no longer permissible. In his petition to the Venetian Senate, the celebrated poet Ludovico Ariosto explicitly specified that the text of his Orlando Furioso for which he was granted a privilege could not be reproduced in the same size or made larger or smaller. Nor could it be copied by employing a different type. He emphasised that it was not permissible:

[T]o print or to put to print my work, by using any other font, neither in a grand folio size, nor in the smallest one, without the explicit license and concession of me, Ludovico Ariosto, the author of the aforementioned work.[16]

One consequence of the expansion of the protected subject matter from printing technologies to specific texts was the practice of granting printing privileges not just to printers and publishers but also directly to the authors. The privileges granted to Marc’Antonio Sabellico for the publication of his history of Venice, Decades rerum Venetarum (1486), and to Pietro Tomai of Ravenna for his work Phoenix (1492) on the art of improving the memory, set a precedent for granting these authorial privileges. Thereafter, writers began to make applications for privileges to the Venetian state on a regular basis.[17] Indeed, over the next thirty-four years, 254 privileges were granted, of which 79 (or, approximately thirty percent) were given to authors,[18] editors, commentators and translators of original works.[19]

Portrait of Marcus Antonius Coccius Sabellicus, by Jean Jacques Boissard / Wikimedia Commons

It might be tempting to think that this practice of granting privileges directly to authors reflected a growing recognition of ’authorial rights’, one that would lead to a new way of conceptualising the literary work – that is, in more abstract and immaterial terms than was the case for industrial products. However, there exists no such linear progression in this regard. In fact, many early developments in this field moved in exactly the opposite direction.[20]

First, in applying for privileges, early authors were not necessarily making any aesthetic or moral claims in relation to their works, but were instead simply displaying entrepreneurial acumen in seeking to capitalise on the emerging book market. Moreover, if in the early years of printing, authors took an active part in the publication of their own texts by securing privileges and coming to contractual agreements with the printers, with the expansion of the book market and the eventual establishment of the Guild of Printers and Booksellers these practices became increasingly unusual as professional interests began to dominate the trade. After 1549, the exclusionary politics of the guild towards non-members gradually obviated the ability of individual authors to claim privileges and retain control over their own texts. In short, authors found it difficult to control the commercial and artistic exploitation of their own work.

It was however in the course of this struggle that authors themselves began to consider the nature of the rights they enjoyed in their work, and so to express ideas about the author’s relationship with his work. Initially, though, this understanding was far removed from any notion of the text as a particular category of ’intellectual’ property that extended beyond the act of publication. While some outstanding writers such as Ariosto, Erasmus, Marsilio Ficino, Pietro Bembo or Torquato Tasso were certainly aware of the intellectual value of their work and spoke of the authorial ’honour’, artistic ’fame’ and ’paternity’ of their work, alluding therefore to less material aspects of the bond that linked authors with their work, the extent to which they felt entitled to claim ’property rights’ in these immaterial aspects is not clear. For example, a famous Venetian poet Pietro Bembo took an active part in the legal control and protection of the artistic integrity of his texts but he never applied for privileges himself. These applications were always made by others: his younger brother Carlo, the printer Aldus Manutius, his secretary and friend Cola Bruno, his nephew Giovan Mateo Bembo.[21] This is perhaps because Bembo would have never considered coming down from the pedestal of his artistic rank and getting involved in detailed negotiations with the mercenary world of printers and book sellers.[22]

In order to safeguard their rights against professional producers, authors were often compelled to rely upon the same arguments as the publishers themselves: the physical labour expended, the high costs of production, and the other practicalities involved in the material production of books. In justifying their grants, they employed the same language found in industrial monopolies, emphasising the economic risks and public benefits involved, as well as the novelty and usefulness of their ’invention’. In fact, the contemporary term inventio did not discriminate between industrial and literary inventions.[23] Any distinctive sense of their product as a particular category of commodity – as a work of mind – appears to have been absent from these documents, as the authors hoped to concretise the property in the physical object of the manuscript for which they could claim a familiar trade privilege protection – a protection based upon the principle of protecting economic interests in material goods. From this point of view, book privileges were still largely tied to the material product of the printing press and conceptualised as a traditional trade privilege of the publisher extended to an author. Instead, the way in which the protected work came to be conceptualised in more abstract and intangible terms – that is, as a product of mind – can be explained by reference to the world of artisanship and crafts.

Medieval Guilds and Corporate Ownership of Knowledge

Giovanni Botero / Wikimedia Commons

One of the greatest centres of trade and production during the Renaissance period was Venice. Already by 1600, Italian historians looked back to fifteenth century Venice as the most prosperous of European cities. In 1605 Giovanni Botero wrote:

There is such a variety of things here [in Venice], pertaining both to man’s well-being and to his pleasure, that, just as Italy is a compendium of all Europe, because all the things that are scattered through the other parts are happily concentrated in her, even so Venice may be called a summary of the universe, because there is nothing originating in any far-off country but it is found in abundance in this city.[24]

Several developments contributed to the economic success of the Venetian Republic: its thriving commerce with the East and transalpine Europe, the rapid expansion of artisan crafts and industry, the development of merchant and artisanal guilds and the rise of material culture and capitalistic mercantilism.[25] These in turn provided the essential environment in which proprietary attitudes towards artisan artefacts and the specialised knowledge required for their production could develop. These attitudes were manifest in two related phenomena: the emergence of widespread craft secrecy to protect craft knowledge from theft within the guild system, and the development of the privilege as a form of limited monopoly for inventions and craft processes granted to individuals. The former, which will be considered within this section, emerged as an aspect of medieval urban economic policies associated with the collective, corporate ownership of the guilds. The latter, which will be addressed in the next section, substantially built upon the older corporate protectionism of the guilds but also eroded it by offering monopolies to individual craftsmen for new inventions and processes that could no longer be claimed by corporate institutions to be part of artisanal ’mysteries’. The clash between these two cultures – traditional guild monopolies and the new individualised form of industrial property – contributed to the emancipation of the individual author-inventor and the emergent notion of original authorship.

The institutions devoted to guarding trade secrets were the guilds (arti).[26] The guilds developed and used various mechanisms in order to protect these trade secrets and traditional techniques inherited from the past: most technical and craft knowledge was transmitted orally through apprenticeship and under secrecy oaths; the guilds restricted the movement of workers to prevent them from disseminating this ’tacit’ knowledge of their trades abroad; and, the guilds also sought to place limits upon the initiative of individual entrepreneurs by keeping workshops small, forcing artisans to work on only a single project at a time, and by taxing individual masters for hiring additional assistants. Such mechanisms were intended to keep any single interest from breaking out of the guild system.

By the mid thirteenth century, there was already a fairly organised guild structure in Venice and contemporary craftsmen were willing to introduce, develop and practice their skills under the protection and control of these guilds. With the lucrative sales and demand for Venetian products, however, many Venetian artisans were tempted to leave the guild framework and establish their workshops independently. To protect Venetian specialties, the city and the guilds started introducing rigid regulations on the various trades.

In 1295, King Edward I had representatives of the common people join with the nobles and clergy already on the Council. later evolved into a two-house legislature. the House of Lords (nobles and clergy) the House of Commons (knights and townspeople) Parliament’s power comes from its ability to control taxes.

This can be illustrated with the example of the guild of Vetrai in Venice, who were very protective of their glass making techniques. Venetian glass products were valued and sold profitably throughout the continent but the export of the craft itself, that is, of information concerning the craft processes and the practice of the craft, was strictly forbidden. Such knowledge was perceived as communal property to be used strictly for the benefit of the Venetian commune and the guild. As early as 1271, guild capitularies warned that ’anyone of the aforementioned art who will have gone out beyond Venice with the aim of practicing the said art’ would pay a fine. In 1295, the Great Council deplored the loss of glassmaking secrets to the competition abroad and lamented that ’furnaces had multiplied at Treviso, at Vicenza, at Padua, at Mantua, at Ferrara, at Ancona and Bologna’. The Council ruled that glassworkers who left Venice to work outside would be banished from the guild and forbidden to work in Venice again.[27]

The possibility of the flight of artisans with the consequent diffusion of their techniques was a problem that had haunted the Venetian government for centuries, despite increasingly severe penalties for artisans caught jeopardising the Venetian monopoly, penalties which could include death.[28] Such extreme remedies, however, were not unique to Venice. In Genoa, the city most injured by artisan emigration, the authorities offered in 1529 a reward up to two hundred ducats to anyone who killed a fugitive artisan. Similarly, Lucca had been offering a bounty for the murder of emigrant workers since 1314, and Florence punished transgressors by beheading.[29]

These draconian measures, designed to prevent the movement of workers, illustrate how contemporary governments and guilds placed great value on specialised expertise and knowledge and sought to protect it from individualistic entrepreneurial challenges. According to Pamela Long, this culture of corporate protectionism produced a unique environment in which a basic awareness that craft processes and knowledge constituted intangible property, property which could be protected and owned, was allowed to develop: ’In promoting attitudes of ownership toward intangible property – craft knowledge and processes as distinct from material products – the guilds developed the concept of ’intellectual property’ without ever calling it that.’[30]

Such a claim, however, must be treated with some caution, for these possessive and mercantilist attitudes towards trade secrets cannot be equated with the proprietary models of modern intellectual property law. The question is whether the contemporary guilds were concerned with keeping the craftsmen for the sake of their labour and skills, or whether they were attempting to protect expertise and knowledge as a valuable commodity understood in more abstract immaterial terms. Moreover, we must bear in mind that the proprietary attitudes of the guilds were closely tied to the notion of corporate ownership and were developed within the context of protecting communal and guild interests, quite apart from the notion of individual authorship. Craft knowledge was not generally linked to individual owners or to innovation; rather it was understood as a corporate resource – part of the governance structure of the guild’s communal activities which were controlled by the government. In a similar way, the process of writing and producing books in the early years was perceived as a collective and collaborative enterprise.[31] The development which encouraged the separation of the notion of individual authorship from communal corporate ownership was the emergence of the industrial patent system.

The Statue of 1474 and the Venetian Privilege System

The Venetian Patent Statute, enacted by the Senate of Venice in 1474, is widely accepted to be the basis for the earliest patent system in the world. / Wikimedia Commons

No matter how severe the punitive guild regulations were in attempting to restrict the emigration and entrepreneurial initiative of individual workers, their effectiveness was mitigated by the simultaneous development of the legal incentives designed to lure skilled professionals, or an entire industry, into other cities and states. While the guilds’ monopolies often sought to constrain the freedom to import foreign goods or expertise, the use of individual privileges provided short-term exclusive rights to inventors and entrepreneurs initiating new technologies or products in order to revitalise native industry. Contemporary states might have been pressured into such ’modernising’ policies in order to adapt to contemporary innovations and to ward off foreign competition.[32] Princes, city councils and popes in Rome, all sought to attract new technologies and trades by guaranteeing legal, fiscal, and social benefits to any artisan or merchant willing to move to the new city. These benefits ranged from the rights to immigrate and settle in the city, the cancellation of debts, granting immunity from prosecution for criminal offences, or, in the case of those holding papal office, even the promise of an absolution from specific sins. Venice itself was one of the first states to develop and benefit from such a system. As early as 1272, the Venetian government provided that ’any one who comes to Venice to exercise the trade of a wool weaver shall receive a house to live in and to exercise said trade, at Murano, Torcello or in the country, free from cost for ten years’.[33] Initially, these public appeals were meant to attract entire crafts from abroad but they also provided incentive to local entrepreneurs by offering individual monopolies to those who undertook to introduce a new device or practice a new skill in the city.

Of course, one of the most famous legislative initiatives in this regard is the Statute of 19 March 1474. The Statute elaborated that the greatness of Venice had attracted numerous individuals ’who have most clever minds, capable of devising and inventing all kinds of ingenious contrivances’ and who sought to test their skills and inventions in the city. In order to freely exercise their talents these men needed a fundamental incentive: the certainty that no one could copy and use their inventions with impunity. And therefore ’should it be legislated that the works and contrivances invented by such men could not be copied and made by others’. The Statute also provided that monopolies might be granted for ’any new and ingenious device, not previously made’, as long as it was useful and beneficial to the community. In addition, it required that each inventor had to register his discovery at a state office (Provveditori di Comun). In return, no one within the Venetian territory could make a similar device for ten years without the consent and licence of the inventor and if anyone infringed the law, they were to pay one hundred ducats and the device might be immediately destroyed.[34]

For a long time this Statute has been celebrated as the first comprehensive law which provided a statutory basis for the Venetian privilege system. It has been argued that, for the first time, an attempt had been made to apply general rules to the granting of a patent rather than conferring ad hoc favours (gratiae) in response to individual petitions. Now, apparently, ’every inventor enjoyed some […] substantive right, arising from the very fact of his invention and not merely a privilege granted on the basis of some state policy’.[35] In the most recent scholarship of this persuasion, the Statute has been portrayed as the earliest instance of the constitutionalization of patent law which inaugurated ’the first modern patent system’.[36] In ’Constitutionalizing Patents: From Venice to Philadelphia’, Craig Allen Nard argues that the practice of granting ad hoc individual monopolies by the state as a reward to inventors was replaced in Venice by a more durable general patent law because of the ’republican’ structure of the Venetian government which prevented the organisation of factions and interest groups thus undermining the stability of such ad hoc bargains. Arguably, in addition to overstating the significance of the 1474 Statute, this interpretation oversimplifies the relations between patrician elites, the citizen bureaucracy and the popolo members of the guilds in favour of a public choice explanation for the enactment of the Statute of 1474 and other important episodes in the history of patents.[37]

There are various reasons for being sceptical about the interpretation presented by Nard and others. In the first place, the Statute of 1474 did not introduce any new principles but functioned primarily as a codification of previous customs.[38] It neither fostered any universal privilege regime nor marked the beginnings of the modern patent system. It was itself essentially an ad hoc measure rather than a premeditated institutional shift from individual grants to a bureaucratised system. Moreover, it neither committed the executive to enforce it, nor did it instigate any further legal developments in this field. Neither do we find any specific appeals to this Statute by any individuals subsequently petitioning for protection. In short, the Statute should be best understood as a declaratory instrument codifying existing general principles and customs of granting patent rights for innovations in Venice.

However, neither can one speak of this Statute as purely accidental. It has to be placed within the context of many similar public appeals which aimed to attract foreign expertise and innovation in order to adapt to an increasingly competitive market. Such provisions were becoming one of the characteristic instruments of international economic competition. Arguably, another historical factor that might have prompted the emergence of this law was the extraordinary success of printing itself. The introduction of the press by Speyer five years earlier, in 1469, demonstrated the financial benefits of attracting technical innovations to the city. In very little time, printing became one of the most important economic activities of Venice, alongside the silk manufacturing and glass making industries. However, as previously noted, unlike these industries the practice of printing was not incorporated within the guild structure until 1549. Neither was there any general regulation which would deal with the printing industry as a whole.[39] That is, it can be argued that the rapid expansion and economic success of the printing industry combined with the absence of any regulatory procedures encouraged the Venetian authorities to issue a more general provision which would, in turn, further stimulate an influx of new technologies as well as standardise licensing procedures. Such a reading also supports the argument that there was no strict separation between industrial and printing monopolies during this period, and suggests the existence of a continuing dialogue between the two.

The real significance of the 1474 Statute however lies in the fact that it focuses on protecting and rewarding individual inventors, in contrast to the monopolies reserved to guilds which were concerned with the effective control of the market as opposed to providing reward or compensation for innovation. That is, the Statute can be understood as an instance of municipal protectionism favouring individual rather than a corporate form of property. Unlike the guild monopolies, which were perpetual in duration, the Statute limited the available term of protection to ten years. And although we do not find any specific appeals to this Statute on the part of individual petitioners, it may be that this law encouraged the further use of state monopolies by individual inventors.[40] While these grants were exceptions from the guild monopolies, conferring favour on foreigners and non-members, they could also protect petitioners from the local constraints of guilds engaged in related production and jealous of their economic rights. When, in 1297, the Venetians sought to stimulate the invention of new medicines, they passed a law which provided that ’if any physician wished to make any of his own medicine in secret, he may be empowered to make it […] and all guild members may swear not to interject themselves into the above mentioned [matter]’.[41] Such judicial decisions served to facilitate innovation and foster public interests rather than private rights of individuals. Nevertheless, in the long term, these individual grants and laws eroded the jurisdiction of the guilds and provided a formal legal mechanism by which individual entrepreneurs could challenge the corporative monopolies of the guilds. That is, in an incidental but significant way, these grants became important vehicles for individualisation of authorial rights.

From Corporate ‘Ars’ to Individual ‘Ingenium’: Filippo Brunelleschi and the Humanist Synthesis of Theory and Practice

Presumed depiction in Resurrection of the Son of Theophilus, Masaccio / Wikimedia Commons

The effort of the guilds to monopolise and control trade secrets was designed to restrict the personal initiative of individual entrepreneurs and compel contemporary craftsmen to practice their skills under protection and control of those guilds. Ironically, these monopolistic attitudes increased the awareness of the commercial value of craft knowledge and heightened the level of intra-guild competitiveness and mercantilism among the artisans themselves. Venetian records of stolen glassmaking recipes reveal these attitudes. A fifteenth-century glassmaker, Giorgio Ballarin, for example, stole the recipes for ’various colours mixed in glass’ from the famous Venetian inventor of crystal, Angelo Barovier. He then gave the recipes to Angelo’s rival, his future father-in-law, and subsequently became one of the leading glassmakers of Murano.[42] Moreover, with the emergence of privileges for inventions, more entrepreneurial individuals would sometimes break out of the guild system by securing individualised patent protection of the state. The most conspicuous instance of this is the Florentine architect and engineer Filippo Brunelleschi.

Trained as a goldsmith, Brunelleschi matriculated as a master in the silk guild (which also trained the goldsmiths) in Florence in 1404. He also became a member of the Opera del Duomo, the committee that supervised the construction of the Florentine cathedral at the time. Brunelleschi designed and built the dome using improved scaffolds and without rigid, wooden centring or formwork. He also designed his own hoisting crane and other machines which secured cheaper, more secure and faster delivery of the building materials. This method of building without centring had never been applied on such a gigantic scale; probably it was altogether unknown to the Florentine masters. In fact, the committee for the construction of the cathedral dome refused to follow Brunelleschi’s innovative methods and continued to follow the more traditional approach of his rival and co-supervisor of the construction, Lorenzo Ghiberti, instead.

Brunelleschi’s tenuous relationship with the Dome Committee and his conflicts with his rivals and other guildsmen are well known.[43] In the course of his notorious dispute with the woodworkers and stoneworkers’ guild he was jailed for eleven days. He refused to join the guild and sought to reassert his individual authority as an architect and constructor. He argued that he alone was the author (’autore’) and inventor of his construction methods and devices and refused to disclose them to other guildsmen.[44] Moreover, he contested the guild’s claims to the ownership of his own inventions by applying himself for privileges.

In 1421, he applied to the Florentine commune for a privilege on a cargo boat that he had invented to improve the shipping of the building materials for the dome construction along the Arno River. In his petition, Brunelleschi described himself as ’a man of the most perspicacious intellect, both of industry, and of admirable invention’. He claimed that the newly invented ship could haul loads more cheaply and that it would provide further benefits to merchants and others. But he refused ’to make such machine available to the public in order that the fruit of his genius and skill may not be reaped by another without his will and consent’. If he could enjoy ’some prerogative’ concerning his invention, he ’would open up what he [wa]s hiding and would disclose it to all’. A monopoly would allow the matter to be brought to light for the benefit of Brunelleschi and everyone else. Following his request, the state of Florence granted him a three-year exclusive right to build and use on Florentine waters a new ship or other device for transporting goods on waters; any ’new or newly shaped machine would be burned’.[45]

This broad range of rights conferred on Brunelleschi outside of the monopolistic strictures of the guilds is emblematic of the growing recognition that the medieval monopoly system associated with the guilds no longer sufficed to promote the economy of the state. In the new realities of the advancement of industrial technologies and a more aggressive commercial exploitation of inventions, it was the emerging privilege system that would foster innovation, technological change and entrepreneurship. Characteristically, Brunelleschi himself suggested that such a privilege would foster innovation and provide incentive for his further work. As he put it, he would be motivated ’to higher pursuits, and would ascend to more subtle investigations’.[46]

Portrait of Leonardo da Vinci by Francesco Melzi / Royal Librarian, Wikimedia Commons

Brunelleschi’s refusal to work within the guild structure illustrates the emergence of more possessive attitudes towards craft knowledge among individual inventors, and their increasing concern to protect their knowledge and work from unauthorised dissemination. Traditionally, guilds provided such protection but once individualist assumptions about inventions collided with the corporatist interests of the guilds, individual entrepreneurs began to look for some alternative ways of protecting their knowledge. Writing in secret codes such as Leonardo da Vinci’s mirror writing might have provided one possible solution.[47] Another was the use of single privileges for inventions. Motivated by his confidence in his own technical expertise and a deep concern to protect it, it is no surprise that Brunelleschi used both. His advice on secrecy and limited disclosure as remedy for the theft of ingenious inventions was recorded by his contemporary, Mariano Taccola, the Sienese author of books on machines:

Do not share your inventions with many, share them only with a few who understand and love the sciences. To disclose too much of one’s inventions and achievements is one and the same thing as to give up the fruit of one’s ingenuity. Many are ready when listening to the inventor, to belittle and deny his achievements, so that he will no longer be heard in honourable places, but after some months or a year they use the inventor’s words, in speech or writing or design. They boldly call themselves the inventors of the thing that they first condemned and attribute the glory of another to themselves.[48]

In addition to the availability of patents, there were also other ideological factors that exerted transforming pressures on the collective corporate identity of the guilds. According to Frank Prager, Brunelleschi was ’an outstanding exponent of the rising era of individualism’ which challenged the feudal oligarchy of the guilds.[49] There is no doubt that Brunelleschi was exceptional in many ways. Born to a well-placed family of lawyers, he enjoyed a better education and higher social status than most artisans. Yet Brunelleschi was also fundamentally a product of his own time. His new approaches to creativity, ingenuity and individual authorship were deeply rooted in the rhetorical programmes and aesthetic theories of Renaissance humanism, which placed an increased value on knowledge, learning and individual genius.

Today, historians of the Renaissance are uncomfortable with Jacob Burckhardt’s claims about the Renaissance cult of individualism.[50] They have noted that these new constructions of individual identity were at every step held back by widespread collaborative processes and the continuing importance of collective (corporate) identity in Renaissance Florence, Venice and elsewhere. Yet Burckhardt does have a point about the ’rebirth’ of arts and the rising status of individual artists. One of the long-lasting effects of Renaissance humanism was the elevation of certain arts, most importantly painting, sculpture, and architecture, to the status of liberal, ’fine’ arts. This in turn contributed to the rising status of creators and inventors such as Leonardo da Vinci and Brunelleschi among many others celebrated in Giorgio Vassari’s famous Lives of the most excellent Italian architects, painters, and sculpturers. Painters and other artists also contributed to this view. Albrecht Dürer’s presentation of himself in his Christ-like image as a consummate godlike artist epitomises this trend.[51] Not incidentally, according to Vasari’s account, he took legal action against the Venetian print maker Marc’Antonio Raimondi who had been copying Dürer’s woodcuts from the Life of the Virgin series, and succeeded in preventing Raimondi from using his name and monogram on his works.[52] It is plausible that Vasari’s story about this lawsuit actually took place since Raimondi omitted the famous monogram from his later copies of Dürer. What is interesting in this case is the fact that the Venetian Senate allowed Dürer’s prints to be copied, but required that neither his name nor his monogram appear on the copies. In the context of contemporary art theory and the Renaissance culture of learning by imitation, the reproduction of the ’masters’ was widespread and unproblematic.[53] But not the reproduction of the artist’s personal sign which suggested the artist’s personal presence in the making of a particular work of art, understood as a unique object created by a seemingly irreplaceable individual. It could be argued that while the Venetian legal system did not consider the copying of Dürer’s prints to be illegal, at the same time, it offered protection for something much more subtle and immaterial – not the image but its expression and the artist’s individual style (maniera) – an acknowledgement of Dürer’s generative powers.

This new way of thinking about the metaphysical aspects of the artist’s labour was derived in part from the humanist debates over the nature of technical knowledge. One important development in Renaissance humanism was the proliferation of humanist writings on the mechanical arts, not only on visual arts such as architecture, painting, and sculpture, but on topics such as gunpowder artillery and on machines of various kinds. This literature, the work of university-educated men who turned their hand to technical matters, and of the workshop-trained artisans who took pen in hand to write treatises, narrowed the gap between the cultures of learning and artisanal craft production. It blurred the distinction between theory and practice, transforming certain forms of crafts and constructive arts into written, discursive disciplines which came to be treated as forms of ’knowledge’ rather than mechanical skill.[54] This new way of thinking about craft knowledge helped to separate the notion of invention from the immanent specific machine and resulted in a new definition of the author’s work as a product of the mind.

Leon Battista Alberti / Wikimedia Commons

This new definition of the invention as distinct from its material fabrication is evident in the work of Leon Battista Alberti whose writings influenced learned culture of the fifteenth and sixteenth centuries. Alberti dedicated one version of his treatise on painting De picture to none other than Brunelleschi. He praised Brunelleschi for his ’feat of engineering’ and emphasised that the architect is not a carpenter, alluding to his notorious clashes with the woodworkers’ guild, but an artist ’who by sure and wonderful reason and method devises in his mind and realises in construction whatever is needed’. Alberti, like Brunelleschi, clearly conceived architecture as a discipline involving (intellectual) design emanating from the mind of an individual creator who can then disclose his invention and realise it in (practical) engineering.[55]

Another contemporary treatise which conveys a similar sense of distinction between the tangible and the intangible aspects of the work is the Trattato written in the 1470s by the Sienese engineer and writer Francesco di Giorgio. Francesco began his career as a workshop artisan before becoming a widely respected architect and military engineer. At the same time, he was an aspiring humanist who translated Vitruvius and composed a series of treatises on architecture, fortification and military engineering. Paraphrasing Vitruvius, Francesco emphasised in his Trattato that competence in conceptual realms must take precedence over practical skills. Architecture, he argues, ’is only a subtle image, conceived in the mind that becomes manifest in the work’. Such a work of the mind cannot easily be grasped because ’ingenuity consists more in the mind and in the intellect of the creator than in writing or design’.[56] Having recognised that the work of the mind is distinct from material objects, Francesco also emphasised the need to safeguard it. He condemned those who usurped the works of others and attributed these works to themselves, comparing them to crows dressed in the feathers of the peacock. He admitted that he had translated ’most authentic books’ and credited Vitruvius with authorship, yet he also insisted that his writings were filled with his own original contributions: ’inventions of my own weak skill’.[57]

It is difficult to measure the cultural impact of this expansion of literature on the mechanical arts in the fifteenth century but it was around this time that inventions began to be conceptualised in terms of ideas. Brunelleschi construed his devices as material manifestations of immaterial genius and his petitions for privileges contain new forms of justifications and claims, couched in the vocabulary of individual genius and mental labour. Moreover, this emerging class of author-inventors introduced more mercantilist approaches to the world of ideas and the culture of authorship. The fact that they came from the artisan’s world – the world of material things, ownership and reward – is significant, for they were able to associate their intellectual effort with material application and so began to place a commercial value on the exploitation of their ideas.

Author-Inventors and the Press: The Rise of Professional Writers

An increased appreciation for the technical arts and spread of humanism furnished a growing supply of technical manuals and treatises explaining craft techniques and other artisanal ’secrets’. But this growing demand for practical literature was also a response to the realities of a changing book market, as early interest in religious subjects and ancient classics began to flag and shifted to new areas, including science, medicine and technology. Since the market for books was new and almost entirely unregulated, many were encouraged to reap the rewards of technical authorship. The early recruits into the industry included craftsmen, engineers, merchants, painters, and physicians – a mosaic of the Renaissance petite bourgeoisie. Whether working for wages as in-house authors or free-lancing and dependent on patronage, these obscure but prolific literary producers signalled the emergence of a new class of professional writers making a career out of a new printing technology. Their background, combining commercial and scholarly experience, ideally prepared them for the role of cultural brokers mediating within a shifting space of a printing house where academic, ’popular’ and craft influences and traditions converged.[58] Operating within an emphatically mercantilist value system, which encouraged the ideology of ’possessive authorship’, they illustrate how an ideology stemming from the material world of contemporary crafts could be extended into the realm of literary production.[59] As soon as they took pen in hand to elaborate upon their technical skills and inventions in writing, they undertook also a new craft of professional writing and sought reward for their new skill.

Arabic medicinal tract by Democrito Terracina / Creative Commons

The rewards of technical authorship are particularly evident in the careers of early publisher-physicians in Venice, who took advantage of Venice’s flourishing book market and privilege system to capitalise on the secrets of their trade by publishing medical advice for the ’common man’. These works, ranging from theoretical treatises to recipe books and surgery manuals, written in vernacular and intended for a more general non-specialist audience were often submitted by the physicians themselves who put forward all sorts of extravagant claims to obtain a privilege in relation to the same. In 1498, for example, Democrito Terracina claimed that the Arabic and Armenian medicinal tracts which he intended to publish were to foster scientific knowledge and public health. To print these books would be ’of utility to the Christian republic, and the exaltation of the faith, and the augmentation of the natural sciences, as well as medicine, in the conservation of the health of the soul and bodies of many and all faithful Christians’.[60] Another example is the 1509 privilege granted to a Venetian physician Pietro de Mainardi for the publication of his compendium containing remedies against pestilence.[61]

This convergence between scholarship, craftsmanship and business acumen was brought into sharper focus by the practice of publishing technical manuals by professionals of specialised trades writing for other professionals. Traditionally, technical and craft knowledge was transmitted orally through apprenticeship systems or handed down through families, from one generation to the next. With the advancement of craft technologies and the expansion of trade investment, however, such modes of transmission no longer seemed sufficient and artisans, entrepreneurs and investors began to rely on printed industrial manuals in order to learn a trade. Changing technologies pressured craftsmen to acquire new skills, many of which they could gain or improve by reading books, while their wealthy and literate but inexperienced patrons wanted to learn how to maximize the profitability of their investments.

The printing of books of techniques may have codified well-known practices, but they also posed the question of how to ’safely’ reveal previously concealed techniques to a wider audience while protecting ideas and inventions from facile borrowings. This need for protection would become even clearer once the newly patented inventions began to be supplemented with technical manuals and advertised in print. In 1588, a successful Jewish businessman, Maggino Gabrielli, who obtained several patents from Venice, Florence, the Pope, and the King of Spain for his revolutionary methods of increasing the silk harvest, took the momentous decision to reveal all the intimate details of his inventions in print. He published his Dialogues on the Useful Inventions for Silk in Rome with the papal privilege.[62] Gabrielli’s decision to reveal all the secrets in his possession might seem puzzling, considering the numerous privileges with which he jealously guarded his inventions. Indeed, in his second dialogue he informs his readers that the content of the inventions had been kept secret until now because he was waiting to receive all the privileges requested from the Italian princes. Once the last monopoly was obtained however he applied for a printing privilege to publish a book which would advertise and praise the qualities of his inventions.

It is clear that Gabrielli sought to capitalise on his inventions by lucrative sales of his book as well as the returns from his industrial investments, and that he used his Dialogues to disseminate and sell his inventions in Italy and ’beyond the Alps’. His book was also to serve as an instruction manual for the prospective buyers of the new devices. In fact, he intended to create a wide network of agents who would advertise and sell his products at the fairs, who ’will publicly sell both these books of mine, so that everyone might use them in the silk craft, and all sorts of contrivances and instruments that are needed to carefully tend the little worms, and they will be given at such a low price and for such a good bargain that everyone will profit from buying them’. At the same time, while selling these books, his agents were to read aloud the privileges granted by the various princes, to inform the buyers that no one was permitted to reproduce the new inventions on his own or buy them from anyone else. Moreover, the authenticity of the products would be guaranteed by the application of special identification marks.[63]

The practice of revealing protected industrial secrets in published manuals became a well-established method of demonstrating the advantages and feasibility of patented inventions. Combined with printing, such practices expanded the reach of available technical knowledge but also contributed to a process by which proprietary attitudes towards knowledge and the idea of protected production migrated from the world of industrial monopolies to the realm of book protection. The question of how to disclose technical details of an invention without jeopardising an inventor’s economic interests brought into focus the possibilities of a limited transmission and authorial control of such information under the existing printing privilege system, resulting in expanded industrial as well as printing monopoly coverage for works and knowledge that were technological in nature. Such practices further confirm the lack of any meaningful distinction between the industrial monopoly and the printing privilege that was characteristic of this time.

In conclusion, it can be said that the practice of granting industrial privileges in early modern Italy constituted an important arena in which new attitudes and models relating to authorship and property developed. These developments shaped the social and philosophical definitions of intellectual property that prefigured its legal definition and application in the copyright tradition of later periods. These views were first evident within the culture of industrial capitalism and craftsmanship. But they were also influenced by the aesthetic theories of the Renaissance humanism and had emerged from the tension-riddled relationship between collective (corporate) ars and individualistic ingenium.

The example of fifteenth-sixteenth century Venice suggests that the paradigm of proto-copyright protection was partly formulated on the model of protected industrial production and that the concept of possessive authorship developed first with regard to material inventions before it was applied to writing. Another consequence of this convergence between proto-patent and proto-copyright was an increased appreciation for the intellectual labour and the distinction between tangible and intangible aspects of the author’s work. Two different strands of development can be identified in this regard. While in the realm of literary production writers were clinging to the solid and material aspects of their production and the physical object of the manuscript, which helped to concretise the property in terms of material good, in the world of crafts and mechanical inventions the humanist synthesis of theory and practice was pulling in exactly the opposite direction, supplying a much more abstract, broad and fluid concept of the artisan/artist’s work. Here, I have suggested that a particular group of fifteenth and sixteenth century professionals – artisans, inventors and technical authors – made an important contribution to such a view-point. They conceptualised their work in terms of a mixed hybrid form, partly material and partly immaterial, seeking to establish the differentiation and abstraction of authorship from artisanal fabrication and mechanical reproduction.

Paradoxically, these efforts to liberate artistic ingenuity from artisanal fabrication, and the growing recognition that mechanical and artistic inventions were unique objects made by individuals of genius, gained in importance precisely when new cheap means of mass production became available. As Terry Eagleton has observed, the representation of the artist as a transcendent genius was born ’just when the artist is becoming debased to a petty commodity producer’.[64] It was precisely within the battlefield of these conflicting material interests of artisanal reproduction and individualistic artistic commitments that the distinction between tangible and intangible aspects of the work was forged – long before it came to be recognised by copyright law.

Notes

  1. The most important international treaties which sanctioned this modern differentiation between copyright and patent were the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works. J.H. Reichmann, ’Legal Hybrids between the Patent and Copyright Paradigms’, Columbia Law Review, 94 (1994), 2432-558; S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (London: Centre for Commercial Law Studies, Queen Mary, 1987).
  2. This article is based on a series of documents and accompanying commentaries relating to the history of printing privileges in Venice which can be found on the Primary Sources website www.copyrighthistory.org.
  3. ASV, Collegio, Notatorio, reg. 19 (1467-1473), fol. 55 verso. This document has been transcribed and published several times; see: Rinaldo Fulin, ’Documenti per servire alla storia della tipografia veneziana’, Archivio Veneto, 23 (1882), 84-212, 390-405; Carlo Castellani, La stampa in Venezia dalla sua origine alla morte di Aldo Manuzio Seniore. Ragionamento storico di Carlo Castellani prefetto della Biblioteca di San Marco. Con appendice di documenti in parte inediti. Presentazione de Giorgio E. Ferrari. (Trieste: Edizioni LINT, 1973), p. 69; and Horatio Fortini Brown, The Venetian Printing Press 1469-1800: An Historical Study Based upon Documents for the Most Part Hitherto Unpublished (London: John C. Nimmo, 1891), pp. 6-7. See also J. Kostylo, ’Johannes of Speyer’s Printing Monopoly (1469)’, in Primary Sources.
  4. In fact, by granting such an extensive monopoly, the councilors failed to anticipate the potential impact of this new way of producing books. Speyer’s privilege was revoked a few months later, after his death, but had the monopoly remained in force for the entire five years it would have prevented other printers from establishing their presses in the city and, arguably, Venice would have never become the fastest-growing publishing industry in Europe. Even this short period during which the monopoly was in effect must have deterred some printers from moving to Venice. In 1470 about a dozen new printers opened shop in Rome and else-where in Italy, while only Nicolas Jenson and Christopher Valdarfer did so in Venice. Brown claims that the monopoly was never intended to be stringently binding but was more in the nature of a diploma of merit. Brown, pp. 52-3. See also: Carlo Castellani, I privilegi di stampa e la proprietà letteraria in Venezia: Dalla introduzione della stampa nella città fin verso la fine del secolo XVIII (Venezia: Stabilimento Tipo-Litografico Fratelli Visentini, 1888), p. 5; and Leonardas V. Gerulaitis, Printing and Publishing in fifteenth-century Venice (Chicago: American Library Association, 1976), pp. 21, 34.
  5. Between 1474 and 1500, the Senate alone issued 33 monopolies, which number grew to 116 during the first half of the sixteenth century, and to 461 in the next half century, totaling 577 for the entire period of 1501-1600; see Roberto Berveglieri, Inventori stranieri a Venezia (1474-1788): Importazione di tecnologia e circolazione di tecnici artigiani inventori (Venice: Istituto Veneto di Scienze Lettere e Arti, 1995), pp. 21-2. This data, however, is not entirely accurate as the documentation regarding patents is now irretrievably lost in that some registers of the Provveditori di Comune are missing. In the course of the fifteenth and sixteenth centuries, a substantial number of immigrants from Germany, the Netherlands and other Italian states were able to obtain monopolies as importers of a new art or invention.
  6. See for example the patent granted to Alvise di Valentin di Bossi on 2 May 1587 for ’lasagne tirate a forza de mani sottilissime senza alcun edificio stagiarini et macaroni alla pugliese fatti di pasta’, or the patent granted to Alessandro Tornimben and Gerolamo Prevaglio for ’pastizzi fatti de diverse sorti di paste lavorati con ogni sorte de carnami et uzzelami, sì di grasso come dim agro, con pesce et senza’. ASV, PC, b. 16, reg. 31, f. 79r-v. Quoted from Luca Molà, The Silk Industry of Renaissance Venice (Baltimore, London: Johns Hopkins University Press, 2000), p. 375.
  7. This can be compared with the situation in early modern England in which, prior to the formal incorporation of the Stationers’ Company in 1557, the Scriveners’ Guild had operated to regulate various aspects of the book trade (the writing of legal texts, illumination of manuscripts, bookbinding and bookselling) since 1403. The establishment of the Stationers’ Company, and its relationship with the government of the day, occupies a particularly important place in the history of the development of copyright in early modern England. It has been argued that the tension between these two parallel systems of press regulation – the printing privileges based on the royal prerogative (the Crown) and the Stationers’ Hall system, based on the by-laws of the guild – was largely responsible for the development of statutory copyright which, in turn, led to the passing of the Statute of Anne. For this interpretation see: Joseph Loewenstein, The Author’s Due: Printing and the Prehistory of Copyright (Chicago: University of Chicago Press, 2002), p. 30; and Mark Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), pp. 12-16.
  8. In the preamble of the 1549 Decree chartering the Guild, the Venetian Council of Ten complained about the lack of regulation of the trade of printing: ’[T]here is no one who represents the aforesaid art, nor who is responsible for it, so it happens that everyone does as he pleases amidst extreme disorder and confusion’; ASV, CX, Comuni, reg. 18, 18 Gennaio 1548 (m.v.). However, the establishment of the Guild did not restore order within the trade nor standardize or improve its copyright procedures. In fact, the Guild was not granted the exclusive control over published works until 1603 when it finally secured the right to grant and register copyrights. The Decree is reproduced with an accompanying commentary in J. Kostylo, ’Decree Establishing the Venetian Guild of Printers and Booksellers’, in Primary Sources.
  9. All these privileges are cited in Fulin, pp. 84-212.
  10. This document was discovered by the Abbé Mercier de S. Léger in a Greek manuscript of the Bibliothèque Nationale in Paris with several of Aldus’s advertising circulars; BN, Ms. Gr. 3064, c. 85. It has been reprinted by: Antoine-Auguste Renouard, Annales de l’Imprimerie des Alde, ou histoire des trios Manuce et de leurs editions (Paris: Renouard, 1803), II, pp. 207-11; and, Ambroise Firmin Didot, Alde Manuce et l’hellénisme à Venise (Paris: D’Ambroise Firmin-Didot, 1875), pp. 187-226.
  11. The early presses often focused on the production of the same popular titles. For example, Cicero’s De officiis were printed in Venice between 1465-82 seven times, while in Rome three times, Milan five times, Naples two times, and in Brescia Parma and Turin once, not to mention numerous editions of Paris, Cologne, and Mainz. By 1476 17 editions, and by 1482 28 editions, had come on the market. There were also numerous reprints of Sallust, Virgil, Lucans or other standard titles such as the Confessionale of Antoninus Florentinus, the De civitate dei of St. Augustine, the Biblia Latina, the Imitatio Christi, among many others. Rudolf Hirsch, Printing, Selling and Reading, 1450-1550 (Wiesbaden: Harrasowitz, 1967), p. 44.
  12. ASV, Senato Terra, reg. 14, fol. 110, 1 March 1533.
  13. Fulin, p. 150, nr 128.
  14. For examples see: Fulin, nr 31, 33, 124,153, 161, 162, 169; Castellani, La stampa, p. 17.
  15. This Decree is reproduced with an accompanying commentary in J. Kostylo, ’Venetian Decree on Press Affairs (1517)’, in Primary Sources. ’Libri comuni’ were those texts for which privileges could no longer be requested and which were considered a common patrimony of all publishers. These included classical Greek and Latin texts, liturgical and juridical works, dictionaries and grammars. See: Marino Zorzi, ’La produzione e la circolazione del libro’, in Storia di Venezia dale origini alla caduta della Serenissima, 7: La Venezia barocca, ed. by Gino Benzoni and Gaetano Cozzi (Rome: Istituto dell’Enciclopedia Italiana, 1998), pp. 921-85 (p. 967); Angela Nuovo and Christian Coppens, I Giolito e la stampa nell’Italia del XVI secolo (Genève: Droz, 2005), p. 213.
  16. ASV, Notatorio Collegio, reg. 18, c.23r, 25 October, 1515.
  17. Although Sabellico’s privilege is often referred to as the Venetian precursor of copyright, the main body of book privileges dates from the privilege granted to Pietro Tomai of Ravenna on 3 January 1492. These privileges are reproduced in Fulin, p. 102, nr 3, 4. On the historical context of Sabellico’s privilege see Ruth Chavasse, ’The first known author’s copyright, September 1486, in the context of a humanist career’, Bulletin of the John Rylands University Library of Manchester, 69 (1986-7), 11-37.
  18. In particular, 49 cases involved a grant to the author of a work (as opposed to the editor or translator of the same).
  19. According to the privileges recorded by Rinaldo Fulin for the years 1469-1526 (’Documenti’).
  20. Drawing on the critique of authorship scholarship developed by David Saunders, I tend to agree that there was no pattern, no single historical axis along which legal and aesthetic developments progressed towards one coherent goal. David Saunders, ’Approaches to the Historical Relations of the Legal and the Aesthetic’, New Literary History, 23 (1992), 505-21.
  21. Brian Richardson, ’From scribal publication to print publication: Pietro Bembo’s Rime, 1529-1535’, Modern Language Review, 95 (2000), 684-95.
  22. On contemporary humanist attitudes towards printing see Brian Richardson, Printing, Writers and Readers in Renaissance Italy (Cambridge: Cambridge University Press, 1999), p. 79.
  23. This term was used for example in the privilege granted to Pietro Tomai of Ravenna in 1492, for the new the art of improving the memory he ’invented’; Fulin, 102, nr 4. See also: Fulin, 204, nr 246.
  24. Giovanni Botero, Le relazioni universali (Paris, 1605), in Venice: A Documentary History, 1450-1630, ed. by D. Chambers and B. Pullan (Oxford: Oxford University Press, 1992), pp. 167-8.
  25. Fernand Braudel, The Mediterranean and the Mediterranean World in the Age of Philip II, trans. from the French by Siân Reynolds (London: Collins, 1984), p. 128. Braudel’s claim that Venice, as the cradle of modern capitalism, which ’from the very first raised all the problems of the relations between Capital, Labour and the State relations’ might be overstated. Nevertheless, with its corporatist structures and thriving economy, attracting artisans and entrepreneurs of various sorts, Venice was the centre in which these capitalist transformations were well pronounced.
  26. Venice had numerous arti which had regulated the conduct of various professions and trades since the Middle Ages. Each of these arti had its own charter and legislation regarding fees, contracts, working conditions, training apprentices and setting standards of the working techniques. See Richard Mackenney, Tradesmen and Traders: The World of the Guilds in Venice and Europe, c. 1250-c. 1650 (London: Croom Helm, 1987).
  27. I capitolari delle arti veneziane sottoposte alla Giustizia e poi alla Giustizia vecchia dalle origini al 1330, 3 vols, ed. by Giovanni Monticolo and Enrico Besta (Rome, 1905-14), 2, p. 66, nr 8; 2, p. 79, nr 51; 2, pp. 88-9, nr 80. Such regulations were continued throughout the fourteenth and fifteenth centuries. See for example: ASV, Archivio Podestà di Murano, b. 211; Consiglio dei Dieci, parti comuni, b. 1020, Inquisitori alle arti, b. 3; and, M. Miani, D. Resini, and F. Lamon, L’arte dei maestri vetrai diMurano (Venice: Matteo Editore, 1984), ch 3, pp. 108-18. On Venetian glassmakers in general, see: A. Gasparetto, Il vetro di Murano dalle origini ad oggi (Venice: Neri Pozza Editore, 1956); Luigi Zecchin, Vetri e vetrai di Murano, 3 vols (Venezia: Arsenale Editrice, 1987-90); and, Luigi Zecchin, ’Il segreto dei vetrai murnaesi del Quattrocento,’ Rivista della Stazione Sperimentale del Vetro, 11, 4 (1981), 167-72. The silk industry sought to maintain control over traditional procedures by similar methods; Molà, The Silk Industry.
  28. In fact, it is largely due to the emigration of these entrepreneurs that the knowledge of Venetian crafts and the use of industrial patents spread across Europe. For instance, the first industrial patent in France was awarded in 1551 to a migrant from the Venetian jurisdiction, Theseus Mutio, for the production of glass ’according to the manner of Venice.’ Early patents were issued to Venetian glassmakers also in Antwerp, Germany, and England. See: Giulio Mandich, ’Venetian Patents (1450-1550)’, Journal of the Patent Office Society, 30, 3 (1948), 166-224 (p. 206); Maximilian Frumkin, ’Early History of Patents for Invention’, Transaction of the Newcomen Society, 26 (1947-9), 47-56 (pp. 50-4); Jeremy Phillips, ’The English Patent as a Reward for Invention: the Importation of an Idea’, Journal of Legal History, 3, 1 (1982), 71-9; and G. Doorman, Patents for Inventions in the Netherlands during the 16th and 18th Centuries (Amsterdam: Netherlands Patent Board, 1942), pp. 12-13.
  29. Molà, p. 43.
  30. Pamela O. Long, ’Invention, Authorship, ’Intellectual Property’ and the Origin of Patents: Notes toward a Conceptual History’, Technology and Culture, 32, 4 (1991), 846-84 (p. 870).
  31. On the continuing importance of the collective, corporate and collaborative aspects of writing and producing books see: Roger Chartier, The Order of Books: Readers, Authors, and Libraries in Europe between the Fourteenth and Eighteenth Centuries (Cambridge: Polity, 1994), pp. 9-10; and, H.J. Chaytor, From Script to Print: An Introduction to Medieval Literature (Cambridge: Cambridge University Press, 1945), pp. 115-37.
  32. Traditionally, economic historians saw the guilds as essentially conservative institutions inclined to reject any kind of innovation and individual initiative. For a recent critique of this essentially Marxist interpretation see Guilds, Innovation and the European Economy, 1500-1800, ed. by S.R. Epstein and M. Prak (Cambridge: Cambridge University Press, 2008). Francesca Trivellato’s essay on the Venetian silk and glass trades, for example, demonstrates how these guilds were able to adapt to an evolving market through collective invention and competitiveness within the guild itself: ’Guilds, Technology, and Economic Change in Early Modern Venice’, ibid., pp. 199-231.
  33. Mandich, ’Venetian patents (1450-1550)’, p. 171.
  34. For the text of this Statute and further discussion see J. Kostylo, ’Venetian Statute on Industrial Brevets (1474)’, in Primary Sources. See also Giulgio Mandich, ’Le privative industriali veneziane (1450-1550)’, Rivista del diritto commerciale e del diritto generale delle obbligazioni, 34 (September-October 1936), 511-47 (pp. 518-9); Frumkin, ’Early History of Patents for Invention’; and more recently, Molà, p. 187.
  35. Mandich, ’Venetian Patents (1450-1550), p. 180.
  36. Craig Allen Nard, ’Constitutionalizing Patents: From Venice to Philadelphia’, Review of Law & Economic, 2 (2006), 224-321.
  37. Nard’s interpretation is characteristic of much of the American scholarship in the tradition of Bugbee, Prager, Frumkin and others. According to Prager, for example, in ’most places the patent system was adopted almost exactly as developed in Venice […] all of the basic rules developed in Venice were preserved in the subsequent systems’; Frank D. Prager ’A History of Intellectual Property from 1545 to 1787’, Journal of the Patent Office Society, 26, 11 (1944), 711-60 (p. 720). See also: B.W. Bugbee, Genesis of American Patent and Copyright Law (Washington, DC: Public Affairs Press, 1967), 23; M. Frumkin, ’The origins of patents’, Journal of the Patent Office Society, 27, 3 (1945), 143-9; and, Christopher May, ’The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property’, Prometheus, 20 (2002), 159-79 (p. 162).
  38. On the previous development of patents and related issues see Mandich, ’Primi riconoscimenti veneziani’, pp. 116-55.
  39. The first general law regulating the printing trade was not passed until 1517. Beforehand, the trade was left virtually uncontrolled. On the significance of this law see J. Kostylo, ’Commentary on the Venetian Senate’s Decree on Press Affairs (1517)’, in Primary Sources.
  40. Berveglieri, Inventori stranieri a Venezia.
  41. Long, ’Invention’, p. 876.
  42. This story comes from the fifteenth-century account written by a monk Gian Antonio, in honour of his master Paolo de Pergola, ’the first author and inventor of various colours mixed in glass’ who taught his secrets to Angelo Barovier one of his pupils. A transcription of this account appears in Emanuele Antonio Cicogna, Delle inscrizioni veneziane, vol. 6, pt. 1 (1852; repr. Bologna: Forni Editore, 1970), pp. 466-71 (p. 467). See also Pamela Long, Openness, Secrecy, Authorship: Technical Arts and the Culture of Knowledge from Antiquity to the Renaissance (Baltimore: Johns Hopkins University Press, 2001), pp. 91-2.
  43. Many details of Brunelleschi’s life are known from the biography written in the 1480s by his younger contemporary Antonio di Tuccio Manetti, The Life of Brunelleschi, ed. by Howard Saalman (University Park and London: Pennsylvania State University Press, 1970); and Giorgio Vasari, Le vite de piu` eccellenti architetti, pittori & scultori italiani, da Cimabue insino a tempi nostri (Florence: Giunti, 1550), Seconda parte, pp. 301-26, esp. pp. 301-2, for his conflict with the guild and Ghiberti. Architecture and sculpture, along with masonry and carpentry were monopolized and regulated by the Guild of the Masters of Stone and Wood.
  44. Ibid., p. 302. He also claimed and obtained a complete refund for his material and labour costs, and an additional 100 florins for the invention as such, which was previously considered by a special commission of the Dome Authority. A similar bonus was given to him for the structural dome design itself.
  45. Long, Openness, Secrecy, Authorship, p. 97. Brunelleschi’s patent has been celebrated by many scholars, although, contrary to recent claims by Prager or Frumkin, it was by no means the first. For a translation and discussion of this document, see Frank D. Prager, ’Brunelleschi’s Patent’, Journal of the Patent Office Society, 28 (February 1946), 109-35. For the original see Carteggio inedito d’artisti dei secoli XIV, XV, XVI, 3 vols, ed. by Giovanni Gaye (Florence: Giuseppe Molini, 1839), 1, pp. 547-9.
  46. Ibid. (author’s own translation of the original document).
  47. Martin Kemp, Leonardo da Vinci: The Marvellous Works of Nature and Man (London: Dent, 1981).
  48. Frank D. Prager, ’A Manuscript of Taccola, Quoting Brunelleschi, on Problems of Inventors and Builders’, Proceedings of the American Philosophical Society, 112 (June 1968), 131-49. Quoted from Long, ’Invention’, p. 879.
  49. Prager, ’Brunelleschi’s Patent’, p. 114.
  50. Jacob Burckhard, The Civilization of the Renaissance in Italy (Harmondsworth: Penguin, 1990), pp. 81-5.
  51. Joseph Leo Koerner, Moment of Self-Portraiture in German Renaissance Art (Chicago: University of Chicago Press, 1993), pp. 34-51.
  52. Vasari recorded Dürer’s complaint to the Venetian Senate in Vita di Marcantonio Bolognese, e d’altri intagliatori di stampe, primo volume della terza parte Delle vite de’ piu eccelenti pittori, scultori e architettori, 2nd ed. (Florence: Giunti, 1568), pp. 294-9.
  53. Lisa Pon, Raphael, Dürer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print (New Haven and London: Yale University Press, 2004).
  54. Long, Openness, Secrecy, Authorship, p. 104.
  55. Leon Battista Alberti, De picture, in Opere volgari, ed. by Cecil Grayson (Bari: Laterza, 1973), 3, pp. 7-107. For the Latin text and English translation see ’On Painting’ and ’On Sculpture’: The Latin texts of ’De pictura’ and ’De statua’, ed. and trans. by Cecil Grayson (London: Phaidon, 1972), pp. 34-5. See Long, Openness, Secrecy, Authorship, p. 124. For Alberti see Franco Borsi, Leon Battista Alberti (Milano: Electa, 1975). For Alberti’s relationship to Brunelleschi see Christine Smith, Architecture in the Culture of Early Humanism: Ethics, Aesthetics, and Eloquence, 1400-1470 (Oxford: Oxford University Press, 1992), pp. 19-39.
  56. ’[È] solo una sottile immaginazione concetta in nella mente la quale in nell’op[e]ra si manifesta.’ ’[L]o ingegno consiste più in nella mente e in nello inteletto dell’architettore che in iscrittura o disegno, e molte cose accade in fatto le quali l’architetto overo op[e]ratore mai pensò’ [sic]. Francesco di Giorgio, Trattati di architettura ingegneria e arte militare, 3 vols, ed. by C. Maltese (Milan: Edizioni il Polifilo, 1967), 1, 36. Autograph manuscript in British Library Codex 197 B21 [MS Harley 3281]. See: Giustina Scaglia’s annotated transcription in Il ”Vitruvio Magliabe-chiano” di Francesco di Giorgio Martini, Documenti inediti di cultura Toscana, 6 (Flor-ence: Edizioni Gonnelli, 1985), pp. 43-50; Long, Openness, Secrecy, Authorship, p. 135.
  57. Ibid., p. 136.
  58. On the early modern interaction between the world of scholarship and craftsmanship see Elisabeth Eisenstein, The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe, 2 vols (Cambridge: Cambridge University Press, 1979), 2, pp. 520-635; Cesare Vasoli, ’A proposito di scienza e technica nel Cinquecento’, in Profezia e ragione: Studi sulla cultura del Cinquecento e del Seicento (Naples: Morano Editore, 1974), pp. 479-505.
  59. The concept of ’possessive authorship’ was coined by Joseph Loewenstein, The Author’s Due.
  60. ’[P]er utilità della republica christiana, et exaltation de la fede, et augmento de la scientia naturale, et ancor de la medicina, per conservation de la salute de le anime et corpi de molti et infiniti fidel[i] christiani’ [sic]; Fulin, p. 134, nr 82.
  61. Remedia praeservativa ab epidemia; Fulin, p. 173, nr 178. Exceptionally, Mainardi was granted a shorter one-year privilege (usually privileges were granted for five or ten years) because of the common interest in public health which would benefit from an open transmission of such a work.
  62. Dialoghi di M. Magino Gabrielli Hebreo Venetiano sopra l’utili sue inventioni circa la seta, Con privilegio, In Roma, Per gli Heredi di Giovanni Giolitti, 1558. Con licenza de’ Superiori. For a more detailed discussion of Gabrielli see Molà, pp. 204-14.
  63. Ibid., p. 209.
  64. Terry Eagleton, The Ideology of the Aesthetics (Oxford: Blackwell, 1990), pp. 64-5. See also Rose, p. 120.

Originally published in Privilege and Property: Essays on the History of Copyright, republished by Open Book Publishers under the terms of a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported license.

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