Regulating Misinformation

Professor Uri Gal argues (Law News 17 June 2022; The Conversation 10 June 2022) that the time has come for legislative control of big high-tech companies. He observes that the policies of companies such as Meta (Facebook), Google and Twitter can affect the well-being of individuals and the country as a whole. He claims that concerns about the harm caused by misinformation on these platforms have been raised in relation to the Convid-19 pandemic, federal elections (in Australia) and climate change among other issues. He argues that legislative standards will hold these companies to account for harmful content on their platforms.

Professor Gal writes from an Australian standpoint. As it happens the yet to be enacted Online Privacy Bill (Aust) proposes to impose higher levels of regulation on online platforms and social media networks. In New Zealand the provisions of the Harmful Digital Communications Act 2015 provide relief for individuals who are harmed by electronic communications and provide for criminal penalties for those posting content with the intention of causing harm or those who post intimate images without consent.

Professor Gal’s issue seems to be with misinformation. At one point in his piece he poses the question “What is misinformation?” but fails to provide any definition.

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Edge of the Infodemic: Challenging Misinformation in Aotearoa New Zealand; Sustaining Aotearoa as a Cohesive Society). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as “misinformation” without further explanation.

The Disinformation Project has provided definitions of misinformation and disinformation in the paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest”. Misinformation is defined as “false information that people didn’t create with the intent to hurt others”. The wording is clumsy. I think what is meant is “false information that people created without the intention to hurt others”. Interestingly nothing is said about dissemination but I assume that is a given.

Disinformation is defined as “false information created with the intention of harming a person, group, or organisation, or even a company”. The paper goes further and defines malinformation as “true information used with ill intent.” The source for these definitions is given as Jess Berentson-Shaw and Marianne Elliot, “Misinformation and Covid-19: A Briefing for Media,” (Wellington: The Workshop, 2020).

The definitions deployed by the Disinformation Project writers seem to focus upon the intention associated with the content associated with falseness of the information communicated. But then the waters are muddied with the addition of true information communicated with a particular intention. The law places high value on truth. For example it is an answer to defamation. I wonder therefore if the concerns of the Disinformation Project are more focused on the consequences of “mis-dis-mal-information” rather than its quality.

As I have said elsewhere the current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them. Of more concern must be the way in which “misinformation” is being perceived as a national security issue, attracting the attention and scrutiny of the current Government.

What is more concerning is the apparent drive to restrict the freedom of expression by defining certain forms of expression as harmful.

I have earlier suggested that the term “hate speech” should be abandoned for the more precise label of dangerous speech – speech that incites or encourages physical harm against a group or individual. In that way and with precision in definition any assault on the freedom of expression is limited.

The Harmful Digital Communications Act 2015 addresses harmful speech by way of electronic communication. Harm in that legislation is defined as serious emotional distress.

But can the broad and ill-defined term “misinformation” be the subject of regulation of legislation either directly or by attacking the platform upon which it appears?

Certainly, there have been frequent efforts by the State to control the medium of communication – the printing press and the trade associated with it were the subject of attack on frequent occasions. The State has interfered with other communications innovations such as radio and television so it is not surprising that there should be efforts affoot to address Internet based platforms.

Professor Gal, like many others, advocates legislating for informational standards focussing on misinformation or disinformation. This is an attack on freedom of expression. He and others who advocate similarly would do well to remember that there is a right to free expression, a presumption in favour of it and weighty considerations in terms of harms have to be advanced by those who seek to curtail it. Stifling contentious debate in favour of a “party” or “government” line by labelling the contrary view as misinformation or disinformation, in my opinion, is not good reason enough.


Windows 11 and Continuing Disruptive Change

In the past as new communication technologies have become available, there has been a period where the new technology has an opportunity to “ bed in”  before the next significant change takes place.  For example the advent of the printing press in 1450 was followed by its spread through Europe, but, apart from improvements in the technology, no new communications technology was present until the development of the electrical telegraph system by Samuel Morse, Joseph Henry and Alfred Vail in 1836.  Effectively, there had been a period of almost 400 years for the printing press to become accepted as a new means of communication.  The telegraph system addressed the tyranny of distance and was followed by Marconi’ s long distance radio transmission in the last decade of the 19th century.  That was followed by developments in radio and within a short time thereafter, the development of television. 

It can be seen from this very brief overview that the time between new technological developments in communications has shortened.  Nevertheless, there has been a “ breathing space”  between each one.  The advent of digital technologies and particularly the rise of the Internet has meant effectively that breathing space has gone and continuing disruptive change is a reality.

The nature of this change has been described in another context as “ The Long Blur”[1] In the 1990’ s the United States economy, the most developed in the world, experienced the longest period of sustained growth for a generation possibly for the entire period of the twentieth century.  One of the characteristics of that period was extraordinary change.

Accompanying this economic change were changes in work habits and attitudes.  The concept of secure lifetime jobs vanished along with associated concepts of loyalty to an employer and a recognition of the loyal employee.  Although many new high paying jobs requiring exceptional skills and intelligence exist, most new jobs will be in what are effectively service industries of which, in some respects, the law may be considered one.

It has been suggested that the Information Revolution which began to become apparent through the 1990’ s is making the same difference to our society, institutions, professions and employment as the Industrial Revolution did over the last 200 years.  As a result, forms of employment such as stock brokers, insurance clerks, bank clerks, etc will look nothing like they did 30 years ago and may simply cease to exist (except in a minor marginalised sense) 30 years from now.  And the significantly disruptive change brought about as a result of Covid 19 has seen changes in the way that people work. Working from home rather than in the highrise office has become the norm and is encouraged. Even the Courts, reluctant to do away with “in person” hearings, has deployed technology to enable remote hearings.

Dealing with computers and software makes one aware of the reality of continuing disruptive change. Version 1.0 of software is rarely the only version. Software often goes through a number of iterations. Similarly with hardware. Software developers continually make demands upon hardware systems often necessitating necessitating upgrades to parts of the hardware configuration (a video card) or indeed a full motherboard replacement.

I have become used to these continual changes. I started my computing life with a TRS-80 Model 1 and taught myself to code, gradually upgraded as new models became available, developed programs and utilities to assist me in legal practice and finally shifted from the Z-80 environment to the Intel one with an IBM PC close and MS-DOS 6. Since then the operating system environment has changed with the introduction of Windows, first as an interface and later as an Operating System (OS). The hardware scene has developed as well to the point where my son and I used to build our own systems mainly because what we wanted was not available “off the shelf”.

This has continued through to today. I have a system which has the componentry I need. Because I enjoy gaming I have a high-spec video card. In fact when I decided to try out “Assassins Creed- Valhalla” I had to drop a new card into the system and found that the motherboard would not support it so I replaced the motherboard as well. Examples of the impact of continuing disruptive change.

I always thought that Windows XP was a stable and reliable OS. It was a bit sad that Microsoft decided on new flavours of Windows and I upgraded to Windows 7, avoided Windows and now have Windows 10 – again a stable and reliable OS. I have a subscription to Office 365 having started word processing with MS Word and have stuck with it. Once again, a reliable and highly useful suite of software tools coupled with a 1 tb Onedrive which allows me to put stuff in the Cloud.

That said I have a large quantities of research data accumulated from over 50 years in the law along with other materials both for my Masters and PhD together with the research for the various books that I have written. This material is available on my desktop system and easily located using Copernic Desktop Search or X-1 recommended by my good friend Jim McMillan of the National Centre for State Courts.

So now Windows 11 has come along and here is where the tyranny of “continuing disruptive change” manifests itself because to upgrade to Windows 11 – which looks like a pretty cool OS – I virtually have to replace my entire system. Now this is going to get a bit technical but bear with me because I hope to be able to send a warning to others who may be thinking of upgrading and I would like to send a message to Microsoft – can we have a flavour of Win 11 that does not require some of the significant hardware changes and consequential software and systems changes that the current flavour requires.

I shall step through the story.

I though I would look into upgrading to Windows 11 and it was suggested that I check my system for compatibility issues using a tool called PC Health which is available here.

I felt pretty comfortable. I have a fairly high-spec machine – an Intel i9 3.6ghz processor with 48 GB RAM and a Nvidia GEForce RTX 2060 Super graphics card.  The motherboard is a Gigabyte Z390 UD. I thought running a check like this would be a formality and I could start to think about moving to Win 11. It was not to be.

The PC Health program advised that my system did not meet Windows 11 system requirements. I was advised that my machine had to support secure boot and that TPM 2.0 had to be supported and enabled on the machine.

What did this mean.

Secure Boot. Most modern PCs are capable of Secure Boot, but in some instances, there may be settings that cause the PC to appear to not be capable of Secure Boot.

These settings can be changed in the PC firmware. Firmware, often called BIOS (Basic Input/Output System), is the software that starts up before Windows when you first turn on your PC.

In essence I needed to change my PC boot mode from “Legacy” or CSM BIOS to UEFI/BIOS (Unified Extensible Firmware Interface). This meant drilling down into the BIOS system before I could execute any changes in the software.

That did not seem to be a problem and I had a look at the BIOS settings by interrupting the Boot sequence by holding down the <DELETE> key while starting. Sure enough the Boot system was a “Legacy” one but that could be turned off and the UEFI system could be enabled. That did not seem to be too hard.

But I did not save the settings and it is just as well. Before making any changes as significant as a Boot system I thought I would do a bit of background and I found some really helpful explanations and guides for achieving what I wanted to do.

There was one problem. If I changed from the CSM BIOS to UEFI then the machine would not boot. This is because the disk is what is called an MBR (Master Boot Record) disk and when Windows boots fin UEFI it must have a GPT (GUID Partition Table) disk.

The changeover from an MBR to GPT disk is complicated. There are a number of ways of doing it and they can be found here but whatever way it is done requires deleting a removing data or backing it up so that it can be restored to the GPT disk.

This is really complicated because my boot drive contains Windows 10 and all of the settings and other data that I need to run my operation. It all seems to me to be a bit too much to try and accomplish on my own because it will involve using boot systems from other media and so on during the conversion process and a restoration of the backup and a clean install of Windows 10 and upgrade to Win 11 from there.

The TPM system in the BIOS seemed relatively simple to enable but it would require either enabling before a clean install of Win 11 or after a reinstall of Win 10 before the upgrade to Win 11.

I thought about all of this and a handy guide of steps and enquiries BEFORE trying to upgrade to Win 11 might be helpful. I am assuming that you are using Win 10 as the OS.

  1. Download PC Health available here
  2. Run PC Health.
  3. It may be that your machine is UEFI capable. You can ascertain this by Run Settings > Update & Security > Recovery and select Restart now under Advanced startup.  From the next screen, select Troubleshoot > Advanced options > UEFI Firmware Settings > Restart to make changes.  

It may still be necessary to access the BIOS and check if you are running Legacy CSM or UEFI

  • Assuming that your machine is NOT UEFI capable, check the BIOS and ascertain if you can switch off CSM and enable UEFI.
  • Exit the BIOS but DO NOT SAVE any changes you may have made while carrying out your checks.
  • If UEFI is NOT available you may need to think about another machine if you are going to upgrade to Win 11 or at least get a new motherboard (if you have a desktop)
  • The next thing is to check the status of your disks. There are a number of ways of doing this.  One way involves using the Command screen. Press the Windows Key + R and type “diskpart” in the box (no inverted commas) and hit ok. At the diskpart command line that will appear type “list disk” (no inverted commas) and hit <ENTER>. You will get a list of your drives. On the far right will be a column headed GPT. If there is a * next to your boot drive then GPT is already enabled. If there is NOT a * then your disk is an MBR disk.
  • If your disk is a GPT disk then you can go and make your alterations to the BIOS settings and there should be no problem.
  • Once the setting have been changed if you run PC Health again you should find you are OK for Win 11.
  • HOWEVER if your boot drive is MBR you should give some thought to having the changeover and accompanying data management done by a professional

I emphasise – these are my own thoughts and analysis. If you have any better solutions please post them as comments. I should be very grateful.

[1] Jim Dator, Futures Volume 33 No. 2 March 2000 page 181 – 197

Facebook and the Printing Press

A recent article in the New Zealand Herald cites historian Niall Ferguson as drawing comparisons between the early days of the printing press and the current free wheeling Digital Paradigm. The argument is that we should learn from the lessons of history

There is no comparison between the technologies.

To suggest that the printing press enjoyed the “permissionless innovation” afforded by internet and digital technologies ignores that fact that in England the press was under the control of the Stationers Guild (later Company after 1556) who licensed what printers could print and kept a very close eye on what printers did. Indeed, their control was such that only the Universities of Oxford and Cambridge were the sites of presses outside of London.
Then there was state regulation of printing that took a number of forms. The Royal Stationer – later the Royal Printer – was responsible for printing the King’s view on things – statutes, proclamations and other such. Thomas Cromwell used the press to great effect during the English Reformation. It was he who used preambles in Statutes to identify the “mischief” that the statute was intended to remedy.
After the incorporation of the Stationers (during the reign of Mary I) it was anticipated that the Company would aid the State using its newly granted search powers to root out the printers of heretical tracts. However the power was deployed to root out unlicensed printers who were not members of the Stationers.
There were also many other efforts by the State to regulate content, some more successful than others. The Star Chamber Decrees of 1587 and 1634 were rather dramatic examples. The Decrees were in fact judgments of the Court in cases involving printing disputes.
Just prior to the Civil War that power of Star Chamber was nullified and printers enjoyed considerable freedom and lack of regulation but it did not last once Oliver Cromwell and the Puritans gathered strength.
After the Restoration there was significant regulation both of printers and the content of the Press by means of Licensing Acts the first of which was in 1662 and which was renewed regularly thereafter until 1694. Charles II’s enforcer as far as print was concerned was a phanatick (to use the spelling adopted by Neal Stephenson in his Baroque Quartet) by the name of Roger L’Estrange – a very nasty piece of work both by the standards of his time and ours.
In 1694 the Licensing Acts came to an end, primarily as a result of political strife within a greater context, and until 1710 there was a lack of restriction on printing. This all changed when the focus moved from the printer to the author who should have control of content and the Statute of Anne was the first Copyright Act.
So to say that there is a parallel between Silicon Valley’s freedom to develop platforms and bolt them on to the Internet and the early history of the printing press is wrong. Indeed, the whole structure of the communications technologies is different. The printing press was the technology and essentially books, magazines, pamphlets and papers were the medium. Today the Internet is the communications technology and Facebook, Twitter, blogs etc etc are platforms bolted on to it. The absence of red tape (what I call permissionless innovation) is what has enabled the growth of the Internet and the proliferation of platforms.
The call is for regulation, but regulation of what. Better to have a regulatory plan in place that we can discuss rather than disembodied pleas to “do something”. Perhaps we could turn to history but I think we have moved on from the semi-absolutist model of the Tudors and Stuarts.

New News Opportunities

In the newspaper this morning there were a couple of articles that caused me to reflect on the level of understanding of the Digital Paradigm. The first by respected business journalist Fran O’Sullivan was about the consequences of the refusal of the Commerce Commission to approve a merger of media giant Fairfax and NZME. But the real focus of the article was about the effects that digital businesses are having on established organisations and the inroads that are being made to traditional funding models. The second was about Margarethe Vestager, the head of the Directorate General for Competition. That article was about the importance, at least to the EU, of the philosophy that a well-policed economy yields the largest and most widespread benefit for society. Some of the examples of steps that were taken involved digital economy giants like Apple, Google and Amazon.

By way of a very brief background, the New Zealand Commerce Commission has made a few waves lately by refused approval for two significant attempts by large media companies to merge. The first was Sky and Vodafone – a broadcaster and a communications company. The benefits of the merger for both companies were obvious. Access to a large well developed Internet provider (Vodafone) by Sky. Ability to enhance an established content delivery service with an established customer base (Sky, albeit content delivery methods are outdated but the merger would have changed that) by Vodafone. But no, said the Commerce Commission. For reasons expressed in a 140 + page decision, this was not a good idea.

The second attempt was a proposed merger between news media companies Fairfax (an Australian company) and NZME (publisher of the NZ Herald). Not a good idea, said the Commerce Commission once again, failing to see the dire state of the news media market but concerned that one company might have too much control over content, especially in an election year – conceptually, a lack of diversity in the news media market.

So that is the background. What Fran O’Sullivan complains about is the fact that the Commerce Commission overlooked or understated the impact of digital players like Google and Facebook on advertising revenue, and the effect that this is having on the viability of news media operations. And of course, a viable Fourth Estate is an important and critical feature of a modern democracy – prepared to hold authority to account, prepared to ask to hard questions, prepared to investigate and uncover malpractice of any sort in the corridors of power.

The focus of the article of the EU Directorate for Competition (EUDC) is mistrust of large corporates and one wonders whether or not that mistrust is the starting point or develops from an evidential foundation. Although there is a hat-tip to the market, it seems to me that the EUDC is about policing and control.

But common to both articles and especially to that of Fran O’Sullivan is a concern about the disruptive effects that new technologies are having on commercial activity. From the news media perception the concern is palpable. The old model is under threat. The solution, according to O’Sullivan is to regulate what she described as the oppressive behaviour of the digital corporates. She suggests that it is time that politicians woke up to the problem and cites steps that are being taken in Australia to examine the impact on public interest journalism of search engines and social media as well as an investigation into “fake news”.

The disruptive effects of new technologies have been going on for some time. We are well into the Digital Paradigm, but not so far out of the old pre-digital paradigm to be concerned that the past ways of doing things may not continue. We anchor ourselves in a comfortable past and really do not like change – especially when there are those who have the foresight and initiative to profit from disruptive change.

The news media provides an interesting model because in fact it is the child of the first communications technology paradigm shift – the printing press. I have suggested elsewhere that the Digital Paradigm is at least as significant, especially in the field of communications, as the printing press. And for some time it has been having a disruptive effect. Initially news media answered the new technology by putting news content online. Some providers set up paywalls for content – an attempt to continue to monetise what they were publishing. This is not a bad thing. You have to pay to buy a “kinetic” newspaper. Why not do the same online?

Convergence posed its own challenges as newspapers online began to include video content and broadcasters included text articles among their offerings. The question arises as to which standards apply to whom. Are broadcasters who make text available subject to the Press Council? Are traditional print media who make video available via a website subject to the Broadcasting Standards Authority? Since the Online Media Standards Authority (OMSA) was absorbed into the Press Council it would seem that the Press Council may be the answer to the regulatory convergence problem. The Government missed the opportunity presented to it by the Law Commission in 2013 to have a single media regulatory body – a very bad call in my opinion.

But the regulatory bodies that have been set up deal with content. The Press Council and the Broadcasting Standards Authority don’t deal with struggling or failing business models. The Commerce Commission could indirectly have done so but didn’t.

One option is to try and maintain the existing business model. As O’Sullivan suggests, bring the digital corporates to heel in the same way as the EUDC does. In this way they may not pose such a threat to the established model which may just manage to hang on for just a little while longer. But in preserving the existing model it is necessary to call on the coercive power of government. A protectionist perpetuation of a model that has had its day.

Another option is to recognise that the business models that underpin the news media and so-called public interest news media is the child of a paradigm that no longer exists. Unless the news media adapts it will die. And if this sounds like a call for evolution in the face of revolution – a sort of economic Darwinism – that is exactly what it is. The Digital Paradigm is so fundamentally different from what could be called the print or kinetic paradigm that news media companies are going to have to examine more than just content delivery but realise that they must examine, understand and utilise the underlying qualities of the new paradigm to develop their business models. And that takes a lot of thinking outside the box and a willingness to start again from scratch.

The result may be an entirely different method of news dissemination – not local but global. Multinational media companies are not unknown, even now but the business model and the way that business is conducted may be radically different from, say, Newscorp.

The third way may be based on the adage “if you can’t beat’ em, join ‘em” One of the targets of the EUDC has been Amazon. Amazon’s founder and CEO is Jeff Bezos. And Jeff Bezos bought the Washington Post for $250 million – and turned a legacy news media organisation around. Perhaps those who are concerned that the digital corporates are posing a threat to current news media business models should rather view them as an opportunity for change.

The Marketplace of Ideas

I read Lizzie Marvelly’s “Words can hurt like sticks and stones” in the Herald for Saturday 8 April with interest. The theme of her argument is that with rights – such as the freedom of speech – come responsibilities. There is no difficulty with that. However, some of the arguments advanced must give cause for pause. What seems to be the substance of the argument is that there is freedom of speech – up to a point.

A recent statement of concern by Professor Paul Moon and a number of other prominent New Zealanders seems to have prompted the article. It is perhaps a little bit disappointing that Ms Marvelly devalues her argument adopting a note of disdain when she refers to this group describing them as a “fusty group of signatories of Moon’s missive – many of whom are long past their student days and unlikely to have faced either online abuse or the dangerous rhetoric of groups like the neo-masculinists or the alt-right.”

Further she seems to be critical the provisions of s. 14 of the New Zealand Bill of Rights Act 1990, suggesting that the freedom of expression – to seek, receive AND impart information – could not have contemplated the democratisation of expression enabled by online platforms.

Of course the history of freedom of expression goes much further back than  1990. And it has been involved with technology. The invention and use of the printing press was as revolutionary for the imparting of ideas as social media is today. In enabled the spread of the radical (and very controversial and unpopular) ideas of Martin Luther that led to the Reformation. And it attracted official interest from the beginning. The expression of dissent, be it religious or political, was severely suppressed in the days of the Tudors, the early and later Stuarts and the Commonwealth in England. The savage treatment visited upon those who expressed unpopular views is well recorded.

The move to a recognition of the freedom of speech came from the experiences of repressive tyrannies both in England and in the American colonies. The First Amendment to the United States Constitution arose as a response to the repressive conduct of the colonial power and to guarantee robust and open debate. Thomas Jefferson referred to the marketplace of ideas which freedom of speech enabled and within which ideas of doubtful or dubious value would fail.

I agree with Ms Marvelly that there are risks associated with the expression of an opinion. The contrary view may be expressed. That is what happens in the market place of ideas. But the marketplace should not be shut down just because some of the ideas may be controversial.  And that is the problem. In the same way that a person has the right to express a point of view, so a potential audience has a right not to listen. They need not even examine what is on offer in the marketplace. But the important thing is that the idea, however controversial – even repugnant – should be expressed and, in accordance with the Bill of Rights Act there is a right to receive those ideas. It is up to the audience to choose whether or not to accept or endorse them.

The real test of one’s commitment to freedom of expression is in being willing to allow the expression of those views with which we do not agree. As Justice Oliver Wendell Holmes said in United States v Schwimmer 279 US 644 (1929) “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The last phrase is the title of an excellent book which Ms Marvelly may profit from reading.

But the New Zealand Herald became the market place of ideas on this particular topic. Not only did it publish Ms Marvelly’s qualified approach to freedom of expression. It also published (Herald on Sunday 9 April 2017) a more expansive view of the freedom of expression by Heather du Plessis-Allan entitled “Being Offensive is not a Crime” concerned with abrogation of free expression (she calls them shout-downs) and the theme of that article is that there is no right NOT to be offended. Indeed Salman Rushdie, whom Ms du Plessis-Allan quotes at the end of her article said “what is freedom of expression? Without the freedom to offend it ceases to exist.” And then of course there is the article that started it all – “Free Speech Under Threat in NZ Universities” – in the Herald for 4 April 2014.

The abrogation of the freedom of expression, even partially, even if voluntarily assumed, is a burden on liberty. So I guess when I shop in the marketplace of ideas I prefer the more robust approach of Professor Moon and Ms du Plessis-Allan.

But by the same token it is fortunate and we should be grateful that we live in a society where the ideas expressed by Ms Marvelly were and are available for consideration.

Authoritative Digitised Legislation


The use of legislative material and, more importantly whether a court will accept it without question,Legislation is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.

Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.

Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:

(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—

(a)   To be a correct copy of that Act of Parliament, enactment, or legislation; and

(b)   To have been so printed or published.

The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.

Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:

(1) Subsection (2) applies to a document that purports—

(a)   to have been printed in the Gazette; or

(b)   to have been printed or published by authority of the New Zealand Government; or

(c)   to have been printed or published by the Government Printer; or

(d)   to have been printed or published by order of or under the authority of the House of Representatives.

(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.

The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:

1.    It is not for the court to ask whether or not the copy proffered is authoritative.

2.    It is for counsel to satisfy himself or herself that what is being proffered is authoritative.

That is all about to change.

Digitised Legislation

The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.

From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website ( and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..

Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:

  •  every act and legislative instrument (LI) enacted or made since 2008;
  • every reprint (subsequent version) of those acts and LIs;
  • the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
  • the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).

Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.


In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.

Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.

Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.

For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.

Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.

Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.

Introduction of Print and the Royal Printer.

I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.

Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.

On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”

 Henry VII utilized print for propaganda purposes and was the first English monarch to do so  And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.  It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.

The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.

The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government.  The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.

The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.

An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.

The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.”  There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.

The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material –  although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.

 Print vs Manuscript

Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.

In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’  In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.

This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.

Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.

The Digital Paradigm

Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.

This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:

 “When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”

The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.

As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium

“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”

But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.

Collisions in the Digital Paradigm: Information Rights and Copy Rights

A Sketch of Thoughts for the ADA Copyright Forum 2013

Judge David J. Harvey

A Judge of the District Court, New Zealand

 This discussion has been a developing project. It still has some way to go. It started as some notes for a keynote speech at the Australian Digital Alliance Forum on 1 March 2013 and formed the basis for a powerpoint presentation together with some discussion points for a panel following the keynote.

 I had completed the notes for the keynote speech but was aware that the rights-based approach to gauging the applicability or strength of copyright protection required further development. I was fortunate enough to be invited to Kiwi Foo – a gathering of people to discuss issues of common interest organised by Nat Torkington and Russell Brown at Warkworth, north of Auckland, in the second weekend of February 2013. I took the opportunity to put the ideas before an audience and see what sort of reception they attracted and what further developments could take place. The session lasted for an hour although I am sure it could have lasted longer, but I was able to clarify some of my own thinking as well as benefitting from the collective wisdom of the group. I am very grateful to all those who attended the session and especially grateful to Lance Wiggs who recorded the various inputs and suggestions on a white board which I photographed with my iPad for further reference.

 I like to see how a proposal works and the Kiwi Foo session fed into that aspect of the development of this discussion and very much informed the latter part of this note where I move to consider how a rights-based approach to copyright would work.

 If this approach to copyright is to go further, much more work will need to be done to rigorously crystallise the basis for change (paradigmatic change in communications as a result of technology leads to changes in behaviours and values and their validity, which underpin the basis for rule making) and examine the way in which a rights based model may work. I see this as a collaborative undertaking and I welcome commentary and new ideas. It may well be that a rights based model may not be the way to go. An entirely different model or an entirely novel solution may emerge. But this is a debate worth having. Between 1695 and 1710 there was a debate about the way in which the trade and technology of printing should be governed. That debate culminated in the Statue of Anne and took place within the context of paradigmatic change in information communication by means of the first information technology. It seems appropriate that we address the issues of copyright anew in this time of paradigmatic change following the development of digital communications systems.

A copy of the Conference presentation (without media) may be found here Collisions in the Digital Paradigm Short

My keynote speech may be found on YouTube Here


 Copyright has collided with the digital paradigm and is in difficulty. There are reasons for this and one of the principal ones is that copyright was developed under a different paradigm. But the current copyright wars that are taking place at the moment are not new.  In fact they are part of continuing story that goes right back to the advent of copyright.

In this discussion I shall outline some of the background to copyright. I argue that paradigmatic change challenges our assumptions about and expectations of information. I contend that the digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking. There can be no doubt that there must be some protection for intellectual property rights. I will conclude by suggesting a possible approach.

Copyright has always been contentious. It creates tensions on the part of content owners who don’t think they have enough protection, and consumers who think that content owners have too much protection. It is a tension as old as copyright itself. And although historically there have been examples of intellectual property protection before the Renaissance[1], the copyright debate began as a result of relatively recent event in human intellectual history. Copyright is the child of the print paradigm. The printing press was the first information technology and it enabled revolutionary change in the way in which people approached and used information.

The printing press mechanised the production of text.  The paradigm that preceded it – what I refer to as the scribal culture – involved the creation of written information by hand.  The volume of written information was limited by the number of copies that were available.  There are a number of consequences for this.  One involved approaches to and expectations of information.  In many cases, because of a limited number of copies, information was located at a central point.  Scholars would necessarily have to travel to that information point be it in a library or a collection where they could access the information and return to their own home to process it.  Necessarily they would take a copy of the information that they sought with them.  They would transcribe the information themselves.  This is the way in which information circulated in the pre-print world.  Copying was a reality.  It was the only way that information could be circulated and there was no concept of what we understand as “the copy right”.

Yet even the origin of our copyright has been contentious. Received wisdom suggests that it had its origins in the licensing regime that was part of the activities of the Stationers Company in England. I dispute this proposition.

The Stationers Company, Licensing and Industry Protection

When one carefully examines the activities of the Stationers Company, even before its incorporation in 1557, it is clear that its focus was directed towards the objective of industry protection for the benefit of its members and the control of the new means of reproducing information.[2]

The Stationers were a craft guild and had been in existence from the latter part of the 14th century.  Originally their guild incorporated everyone who was involved in the creation and manufacture of books.  Stationers were just one arm of the book production operation.  Primarily their role was in the sale and distribution of books that had been copied by scribes, illustrated by limners and bound by binders.  Indeed the formation of the guild suggests that the book trade was well developed in sufficiently competitive to make an early form of governance desirable. Guilds played a significant part of the economic and political life of a city, ensured that proper training for apprentices was undertaken and had a hierarchy of expertise within the guild itself.[3]

By their very nature the Stationers were interested in protecting their craft for the benefit of members of the guild and excluding from the practice of the craft those who weren’t.  Once the printing technology arrived and after the Stationers were incorporated in 1557 the importance of this protection was enhanced.  After all, anyone who had the capital to obtain a printing press could set up in the business of a printer, unsupervised by the Stationers who would challenge their monopoly on the production of books and adversely impact the financial and economic welfare of members of the Stationers Company.  The Stationers authorised certain printers to have the exclusive rights of printing certain books and these were registered in the Stationers Company register.

Now all this may be seen as a form copyright but in fact it was a means of ensuring that only members of the Stationers Company printed books and any books that were printed that had not been registered with the Stationers company at least prima facie could be viewed as books that were printed by a non-member whose activity should be suppressed. After incorporation the Stationers Company was vested with considerable powers to ferret out printers who were not members of the company.

Alongside Stationers Company licensing was the grant of privileges by the Crown to certain printers to have the exclusive rights to print certain works.  This was done by means of a Royal Patent.  These patents could be very valuable.  The patent, for example, that allowed a printer to print a prayer book was extremely valuable because nobody else could.  A prayer book was essential in a society where church attendance was compulsory. The patent that was granted to Richard Totell to print common law books essentially meant that Totell had a monopoly over legal publishing over the latter half of the 16th century.

Because patents were an exercise of royal prerogative power any disputes over the scope of patents would be litigated in the prerogative Court of Star Chamber.  Now it must be remembered that this litigation had nothing to do with author’s rights but everything to do with the protection of the publisher and the developing industry. The Star Chamber Decrees of 1587 and 1634 which, according to many commentators were more directed towards censorship than anything else are, in fact industry control mechanisms that arose out of litigation about patents, their infringement and scope.[4]  In fact if one considers carefully the background to the litigation, the enquiries that were carried out in the late 1570s and early 1580s and the concerns of the Stationers about “disorders” in the printing trade it becomes abundantly clear that the Stationers were interested in keeping their monopoly over the use of the new information technology, excluding non-members from its use, and ensuring that members of the company receive the economic benefits from it.

The disruptions of the Civil War from 1642 through to the Restoration meant essentially that there was an hiatus in the development of printing controls.  Following the Restoration a very rigorous system of print licensing, directed as much towards content as it was towards industry monopoly and control, followed the enactment of the Licensing Act 1662. The Act was enforced by the Stationers – continuing their control over the industry – and was renewed biannually through until 1694 when the licensing rules came to an end.

For a period of 15 years there was a debate about the control of publication of printed works. The focus of the debate began to shift from the publishers to the authors. The writers Jonathan Swift and Daniel Defoe were among the advocates for the author’s right to receive remuneration from the sale of his work.  In 1710, after considerable lobbying and debate, the first copyright statute was enacted – the Statute of Anne – and this was directed towards the new information technology of printing.

Since then copyright has been inextricably tied up with information technologies. It is really based on the use of technology rather than any underlying “property” principles, although it has been dressed up as such.

Scribal Culture Co-existence

Nothing is said in the Statute of Anne about manuscript works and I think that we’ve got to remember that the scribal culture co-existed with the developing print culture for a considerable period of time.[5]  It wasn’t until the advent of the typewriter that the individually created handwritten document effectively came to an end.  But we must remember that content was still available in manuscript form. A fundamental aspect of the scribal culture was that copying was a reality and effectively the only means by which manuscript works were circulated.

There were a number of reasons for the continuing interest in manuscripts.  Within the area of legal writing most lawyers who subsequently had their works printed – like Edmund Plowden[6] and Sir Edward Coke[7] – circulated their works among coteries of friends or fellow professionals within the Inns of Court. Manuscript publishing was for limited audiences.[8]  Printing addressed mass production.  So the Statute of Anne in fact reflects a recognition of the values of two cultures and the qualities of the printing press that differentiated it from the manuscript culture.

 Copyright Wars

Following The Statute of Anne there was a continuing debate about copyright. Publishers looked to other theories to protect the exclusivity on the right to produce content, arguing in Miller v Taylor[9] that there was a common law right to copyright which the Court upheld but which was later overturned in Donaldson v Beckett.[10]

When one looks at the litigation that took place in the early days of copyright –  Miller v Taylor, Donaldson v Beckett, Tonson v Collins[11] – we must ask ourselves whether or not any of the litigants were authors and the answer is no.  The battle then and almost exclusively since has been contended, at least on one side, by the publishing and distribution conglomerates.

There is a reason for that.  Commercial copying and distribution, starting with the printing press, was and is a capital intensive business.  Printing, radio broadcasting, television broadcasting, sound recording, movies are all capital intensive and require large corporate structures, capital investment and financing to publish and distribute the works that the various technologies allow.

Because copyright has called itself technology neutral – a theory which I would dispute vigorously – the principles that were developed in the early years of copyright that underpin the Statute of Anne have remained – principles that had their grounding in print technology.

Essentially conglomerates or monolithical organisations could feel relatively comfortable about their control and dissemination of their content.  The first real challenge to capital intensive complacency came in the form of the photocopier – a cheap, available and accessible means to copy printed works. Although the photocopier was a product of analog technologies, and was just another type of printing press, it was the first alarm bell for print based copyright. It was one of the first examples of the empowerment of individuals to access information other than through established commercial outlets.[12] With the onset of the digital revolution more and more means have become available for individuals to create their own content or to copy that of others.

The conglomerates and the copyright corporates recognise that the power balance has shifted as a result of the new technologies to the point where everyone is able to copy.

Yet the legal battles that have been waged recently reflect what happened in the early days of copyright – the litigation is at the urging of the corporate and conglomerates and authors don’t really seem to feature at all.  Examples may be found in the cases of A & M Records v Napster[13]; Recording Industry Association of America v Diamond Multi Media[14]; Universal City Studios v Reimerdes and Corley[15]; MGM Studios v Grokster[16]; Sony Computer Entertainment v Edmunds[17]; Sony v Ball[18]; Sony Music Entertainment Australia Ltd v University of Tasmania[19]; Sony v Stevens.[20]

In some cases the responses of the conglomerates has been to try and shut down the technology altogether – resist technological change by banning the technology, thus further emphasising the association of copyright with technology. This is an example of vested interest complacency and the failure to understand the view of Mcluhan about rear view mirror thinking –  by the time you recognise the problem caused by a new technology it is generally too late. Examples may be found in the Betamax case  – Sony Corporation of America v Universal City Studios[21] and in the English case about twin reel cassette tape recorders – CBS Songs v Amstrad.[22]

 Every copyright statute has in it provisions about infringement. However, those infringement remedies really can only be sought if it is economically feasible to do so. In today’s digital environment the costs of litigation are too high to pursue individual infringers so copyright conglomerates have managed to obtain an additional infringement remedy – graduated response regimes to deal with file sharing. Let’s be clear about a few things. The first is that copyright owners would have preferred a “guilt by accusation” system with a reverse onus on the alleged infringer. It is just another way of saying that everyone who has a computer or who downloads or has a file locker in the Cloud is a pirate. That was made clear in the original s. 92A debacle in New Zealand The second thing is that a graduated response regime is economically beneficial for copyright owners. In New Zealand complaints of infringement must be accompanied by a $25.00 fee – a little less than instructing a silk and instituting High Court infringement proceedings. Let us be under no illusion about this. The only ones who benefit from the graduated response regime are copyright owners and the cost savings are significant.

 The Answer to the Machine……

One of the problems that copyright theory faces is that we are now in a new information paradigm – a paradigm that is as different from the print and analogue as printing was from the scribal culture.  New copying technologies and digital systems challenge existing copyright thinking because digital technologies work on a premise that is so fundamental that it strikes right at the heart of copyright and that is that copying is necessary for digital technologies to work they can’t function without copying.

It was this reality that prompted Charles Clark to comment “the answer to the machine is in the machine.”[23]

Essentially what Clark was saying was the fundamental problems created by digital technologies have a  solution within the technology itself.  Content owners could take control the copying that was necessary to make digital technologies work.  Thus developed what Kirby J referred to as para-copyright[24]  – the development of technological protection measures (TPMs) and the legal protection of technological protection measures, which meant that attempts at circumvention or the provision of means of circumvention of TPMs were considered on a par with copyright infringement itself.

One of the unintended consequences of TPMs may be seen in the cases of Sony v Edmunds[25] and Sony v Ball[26] in England. These decisions opened the door to copyright by contract. Content owners could impose technological protection measures which could be circumvented if the approved equipment was used. In addition owners could impose standard terms and conditions of sale and could write their own copyright contract that went far and away beyond the careful balance that had been achieved in legislation.  The copyright owners’ dream in Miller v Taylor[27] was finally becoming a reality.

Para-copyright protections actually challenge the developing concepts of fair use and any other concepts that may develop in the digital environment.  TPMs can lock up content far beyond the copyright term.  They are indiscriminate in their prevention of copying and although they may claim to have a focus on copy protection many TPMs are in fact used for access protection as well which is something of an anomaly in the global world – an anomaly perpetuated by the regionalisation of content via Netflix, Hulu, Amazon Music and iTunes.

Clark’s adage about the answer lying in the machine runs up against a problem. Machines don’t operate on their own.  Machines are meant to be servants of people and challenging Clark is McLuhan’s concept of technology induced behavioural change based on another adage –  first we shape our tools and thereafter our tools shape us.[28] And the digital tools that have developed and are developing have already begun that shaping process. I shall develop that argument shortly.

 Welcome to the Machine[29]……Digital Natives, Information Expectations and Frustrations

I make no secret of the fact that I am an adopter of digital technology – a digital immigrant.  I am speaking to you as one who was brought up in the print paradigm.  In my childhood the main means of communication of information apart from the spoken word was by print – books and newspapers or by radio.  I remember the introduction of television.  I have grown up with that medium.  And I have seen the wonderful developments that computer based and digital information technologies can provide.  And I am an enthusiastic adopter of those technologies. My children and grandchildren are digital natives. They will grow up in a world where digital technology always has been around. The idea of a single function telephone that can only be used for vocal communication would seem to be an outrage to them. They are aware of the capabilities and potentials of the new technology and have certain expectations of information that run up against copyright law.  They know that certain seemingly harmless things are feasible even if the law does not permit them.

Digital natives – and I shall have more to say about them shortly – view copyright theory and the values of copyright that developed in the pre-digital world as atrophied and outdated. The position has been made worse by the “commodification” or “walmartisation” of intellectual property coupled with a failure by copyright owners and distributors to recognise that globalisation has been accelerated by the internet in a world where content is digital.

Digital natives find it difficult to understand why it is that they may be willing to pay for a product that copyright owners won’t let them purchase or access.  I can’t subscribe to Hulu because I live in the wrong part of the world.  I can’t download content because I live in the wrong part of the world.  Yet the internet and the globalisation of content and e-commerce have essentially made at least the commercial world a world without boundaries.[30]

A fundamental concept of contract law – that says that it is not in fact the person who has the goods on their shelves but the person who wants to buy the goods that is making the offer, and that the seller has the right to refuse or to accept the offer – provides the basis for copyright owners to regionalise their product.  But the digital native doesn’t see it that way.  They are prepared to pay.  The copyright owner is not prepared to accept the money.  So let’s then look at another solution. We know another way to get the content. Let’s file share.

Some New Zealand television channels screen episodes of popular US shows  a matter of days after they were screen in the United States.  That, to my view, is encouraging because it eliminates the necessity to download to find out what was going on in the show and one could possibly avoid the “spoiler community” for a couple of days.[31] More importantly it is at last a recognition by the content owners that there is growing consumer outrage towards a regionalisation of product that might have been understandable in the days when the movie was carried in a can across the Pacific on a steam ship but which today is instantly available.

In essence when we are looking at access to information and the distribution of information we are looking at aspects of expression – that essential that engages the “copy right”. We need to look at a new approach that recognises technological realities and what it does to behaviour, the values that underly behaviour and consequential expectations of information.

 We Shape Our Tools……

 Marc Prensky, an educationalist who wrote in the early 2000s identified “digital natives” as those who have spent their entire lives surrounded by and using computers, video games, digital music players, video cams, cell phones and all the other tools and toys of the digital age.  Digital natives, said Prensky, are native speakers of the digital language of computers video games and the internet.  But I’m not one of those.  As a digital immigrant I speak with a different accent from that of the digital native.  I have adapted to the new environment but I retain to a certain degree my accent that is my foot in the past.  I know how things were.  That “accent” can be seen in such things as preferring a book with pages to a Kindle or an iPad, turning to the internet for information second rather than first, or even reading the manual for a programme rather than assuming that the programme itself will teach me how to use it.  The digital language is a new language for me and a language learned later in life goes to a different part of the brain.

And that’s one of the interesting things that new technologies do for us.  They change us.  Sometimes we can recognise the changes that they make but there are other changes that are more difficult to recognise. They operate at a subconscious level.[32]

It may be surprising to know that learning to read is not something that comes naturally to people.  It isn’t like speech – our primary means of communication.  When you learn how to read what happens in the brain is that your neural pathways change.  And once they have changed they have changed forever.  Learning to write involves similar changes and what happens with both of those activities is that a remarkable amount of processing of information takes place and it all happens at a subconscious level.

You see writing is a code.  It’s a code for information that is initially conceived as an oral expression and is then rendered into phonetic alphabetically form and when it is read it is reprocessed so that it has meaning.  But in the way in which we read and we write we realise Marshall McLuchan’s comment that “We shape our tools and thereafter our tools shape us.”[33] And the use of new technologies is clearly just that – both behaviourally and physiologically.

 The Medium Is…….. Elizabeth Eisenstein and a Qualities Based Analysis of Print Media

Part of the problem is trying to identify what it is about our tools that allow these changes to happen or that enable them.  In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified 6 fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s 97 arguments around Germany in the space of 2 weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

 a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

 For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. For example, dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[34] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its

presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[35]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Proclamation of laws in print was therefore within the reach of a reasonable proportion of the population.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[36]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[37]

From all this it would be fair to ask –  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

Another thing that Marshall McLuhan said – and he had a tendency to be a little bit opaque in some of the things that he said, and this is one of them – was that “the medium is the message”.  Now a lot of people have taken that to mean that McLuhan didn’t really care too much about content and he certainly did.  But whenever you are looking at the delivery of information by a means other than orally you got to examine the way in which it was delivered.

Using Eisenstein’s approach  I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are

    •  Persistence,
    • Continuing change or what you could refer to as the disruptive element,
    • Dynamic information
    • Dissociative enablement,
    • Permissionless innovation,
    • Availability,
    • Participation
    • Searchability
    • Retrievability.

Within these nine qualities of digital technologies will ultimately lie most of the answers to the questions “where are we going?”

One sure thing follows from two of the qualities. The disruptive element which recognises a state of continual change, and permissionless innovation which means that new stuff is going to happen on the back bone of the internet. It all means we can’t be sure what’s around the corner.  But at least the qualities of new technologies, if considered, will at least give us some idea of possible direction.

 We look at the present through a rear-view mirror……

Now one of the problems that we have particularly in my field of the law is that you run up against a real tension with disruptive communication technologies that are continually changing as a result of permissionless innovation. The law is fundamentally a very conservative beast.  Lawyers really don’t like change.  The law must be certain, known and predictable. When you look at how lawyers work you can see this in a moment.

I’ll introduce this example with another of McLuhan’s adages “We look at the present through a rear-view mirror. We march backwards into the future.”[38]  Take the doctrine of precedent – using earlier decided cases to determine the outcome of a present problem.  Now if that is not an example of driving forward using a rear vision mirror I don’t know what is.  We look to the past to solve the problems of the future.  The difficulty is that many of the decisions of the past or the way in which problems were resolved in the past were based upon a society, a context and circumstances that existed then.  And when you have paradigmatic change – when the world is turned upside down – when you have that, the old rules cannot apply.

The other challenge to precedent that comes from the digital paradigm is this. Precedent depends upon the selection of a certain limited number of cases which are reported and which form the basis for the development of principle – a critical mass. In the print paradigm there was little problem with this. Law reporters and publishers carefully selected the cases that were going to appear in the reports. Unreported decisions were not seen as authoritative.

The qualities of the digital paradigm enable the collection and storage of vast amounts of legal information. Availability in vast data banks, searchability, retrievability and availability mean that vast digital libraries become the first research stop for the digital native lawyer. Because of the volume of legal information that is available, the critical mass allowed by print has been upset. Precedent will become an exercise in fact comparison rather than principle analysis.

Much of the foundation of the development of attitudes to information and its communication was developed within a particular information paradigm and that is the print paradigm.  We are now moving into the digital paradigm and the qualities that Eisenstein identified that applied in the print paradigm have been overtaken by the new qualities that I have suggested.

And so in the law what we do is that we anchor ourselves to the past while the world is changing around us.

Bringing it all back home…..[39]

Let me summarise the argument so far.

a) There are qualities that underlie the medium of communication of information

b) Those qualities dictate and influence behaviour and the development of social and cultural practices

c) The printing press – the first information technology – was an agent for a paradigm shift in relationships, behaviours and activities surrounding information. Many of our assumptions about information in general are grounded in the print paradigm e.g. stereotypes, “black letter law”, upper and lower case etc.

d) The printing press and the print paradigm was the basis for the development of concepts of copyright and was the specific target for the Statute of Anne.

e) The qualities of digital information systems are paradigmatically different from those of the print paradigm

f) These qualities are fundamentally altering our behaviours and values about and our uses, expectations and relationships with, information

 And the question that follows from this is whether or not a system of rules that were based upon and derived from the values that flowed from the print paradigm have any relevance in the digital paradigm. The law loses credibility if it does not accord with the underlying values of a community – the consent of the governed. To maintain a system of rules that run counter to community values is oppression.

This does not mean that creators should not have some kind of protection for their creation. It means that we are going to have to find some other form of justification for the protection of intellectual property and the extent of that protection.

There are a number of international conventions – and I don’t include IP specific conventions such as Berne, WIPO, TRIPS and the like – that provide for the general protection of intellectual property rights. The Universal Declaration of Human Rights demands protection of the right of

“[e]veryone … to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”[40]

The 2005 General Comment[41] on the equivalent article in the International Covenant on Economic, Social and Cultural Rights[42] emphasises the link between this right and the proposition that authors should enjoy an adequate standard of living, and that they are entitled to just remuneration. Among other things, the document requires us to take seriously the idea that liberty interests can be furthered by participation in functional markets for creative work.

But we must remember that copyright is fundamentally grounded upon expression and we cannot overlook the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which explicitly protects the media of expression and information and was intended to include after a rising technologies.[43] Article 19 has come into sharp focus following the report by special rapporteur Frank La Rue who was considering whether or not access to the internet constituted a human right qualifying for protection under Article 19.

Copyright theory needs to recognise and accept that freedom of expression involves not only the imparting of a particular point of view but also the reception of information. And as I have suggested, the Internet facilitates those right and enhances and has had an impact upon the modelling of our information expectations and our consequent information associated behaviours.

A recent case has recognised the freedom of expression in the context of copyright. In Ashby Donald and others v. France[44] the European Court of Human Rights clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim. The case unambiguously declares Article 10 of the Convention applicable in copyright cases interfering with the right of freedom of expression and information of others, adding an external human rights perspective to the justification of copyright enforcement. However, due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.

I am suggesting that the ICCPR or that a rights based approach should be a starting point to measure the strength and extent of any copyright protection afforded to one who engages in content expression. This approach to copyright is in line with the consequences and development of the new information paradigm. Ashby Donald v France gives weight to such an approach. The judgment in this case has confirmed that copyright enforcement, restrictions on the use of copyright protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information. This requires inevitably a balancing test between the rights involved. In terms of predictability of the outcome of such a balancing test, a clear set of criteria needs to be developed.

A rights based approach to copyright has been considered by Graeme Austin and Laurence Helfer[45] and Austin had this to say about the rights based approach:

 “Human rights certainly provide compelling reasons for being concerned about the public domain, reasons that go beyond getting more stuff more cheaply. Human rights law draws attention to a broader set of values: educational rights, environmental rights, the right to food, an adequate standard of health, indigenous peoples’ rights – with which any decent intellectual property system, any decent society, must contend. And human rights lawyers have crafted a powerful lens through which to analyse these issues – these are not just ad hoc distributive justice claims du jour. At the same time, however, human rights laws recognise the importance and the rights imperatives associated with functioning markets. Hence the recognition in many human rights instruments of the right of property.”[46]

Perhaps there should be consideration of a new copyright model that recognises content user rights against a backdrop of the right to receive and impart information and a truly balanced approach to information and expression that recognises that ideas expressed are building blocks for new ideas. Underpinning this must be a recognition on the part of content owners that the properties of new technologies dictate our responses, our behaviours, our values and our ways of thinking. These should not be seen as a threat but an opportunity. It cannot be a one-way street with traffic heading only in the direction dictated by content owners.

The reality is that the law will always be behind technology.  It will always be dealing with an historical problem.  The file sharing legislation in New Zealand is already out of date because one of the critical parts of the legislation is a definition of file sharing that ignores technology such as virtual private networks or magnet links.  Dr. Rebecca Giblin has already pointed out the legal inadequacies of some of the file sharing approaches that have been adopted in the United States.[47]

The law – like TPMs – is a very blunt instrument for a very nuanced area. My suggestion is the redevelopment and rethinking of broad principles that are in accord with the new paradigm rather than being anchored in an earlier one.

We Can Work it Out [48]

There are two ways in which Article 19 can be considered in developing a new model for copyright protection. The first is to measure the strength of any copyright rule against the right to receive and impart information and consider whether the rule is a proportionate limitation of the information right. The second approach, which is very similar to the first, is to use Article 19 as a basis to determine whether a copyright rule/protection is disproportionate to the amount of interference with the Article 19 right, and such a consideration would take place throughout the development of a rule.

In the second scenario, which is the one that I prefer, the engagement of Article 19 could occur at each of the following levels:

 a) policy formation

b) legislation

c) application/interpretation

d) litigation – for enforcement\infringment

 and therefore acts as an umbrella over all aspects of the lifecycle of a copyright rule from basis to enforcement.

Justification may be achieved by weighing competing interests. Any rule that interferes with the Article 19 right must be proportionate and limited only so far as is reasonable and necessary to fulfil the copyright owners’ interests. In addition a rights based approach avoids the absolutes that attach to property theory and the metaphors of “theft”, “piracy” and “trespass” that arise within that context.

Rather than operate as a default rule with a number of exceptions the copy right would fall within the wider scope of a justifiable but proportionate limitation on the freedom of expression. With this approach, fair use, for example, would not be an exception to the copy right. It would constitute an element of the subsisting/continuing Article 19 right.

The proposal may summarised in the following way:

 1. Copyright should not be seen as a property tight – either actual or inchoate

 2. A copyright owner’s rights should not be absolute.

 3. Copyright should be seen as an exception to the wider rights of freedom to receive and impart information guaranteed by Art. 19 ICCPR – and, given copyright does not engage until expression (according to current copyright theory),  it must be subject to the supremacy of Article 19.

 4. Interference with Article 19 rights requires justification by the “copyright owner”.[49]

 5. Once interference with the Art 19 right is justified, any restrictions to the general right and any advantages that accrue for the benefit of the “copyright owner” may be permitted to the extent that they are:

a) necessary to meet the copyright owners interests and justification and

b) proportionate in terms of the extent of the interference

 6. Concepts such as fair use, protection term, remedies (and their extent) fall within the tests of necessity and proportionality rather than exceptions to a copyright owner’s right.

 7. The following brief examples which are presently implicated in current copyright models may demonstrate the approach:

a) Access controls that have no copying implications would not be justifiable.

b) Copying that is necessary for a technology to operate could not be considered justifiable.

c) Format shifting (of any medium) could not be justified in that a royalty had been paid at point of sale.

 We want the World……

It may well be that it will take an equivalent or parallel 15 years as with the case between 1695 and 1710 for us to develop a new copyright solution.  My suggestion to you is that we must recognise that the values of the digital native regarding information have been moulded by the technologies that are available and that will continue to develop – technologies that make information instantly available; that make circumvention of restrictions easy; that allow for the wide spread distribution of information in digital format that challenges the necessity for regionalisation of content; that is an “information now” environment – we want the world and we want it – now![50]  Perhaps a rights based approach may be a starting point.

[1] For a very early reference to a concern about intellectual property in dishes invented by caterers or cooks in the Greek colony of Sybaris see the Greek historian Phylarchaus quoted by AthenaeusThe Deinosophists (C. Burton Gulick trans.) Heinemann 1927  p. 348-9; see also Martial “Rumour asserts, Fidentinus, that you recite my works to the crowd, just as if they were your own. If you wish they should be called mine, I will send you the poems gratis; if you wish them to be called yours, buy my disclaimer of them.” (Martial, Epigrams, trans. Walter C. A. Ker (London and New York, 1920-25), I, 46-47. See also the protection granted to Brunelleschi by the Florentine Republic on 19 June 1421, along with the patent statutes of the Venetian Republic in 1474. Interestingly most of the protections for authors’ works in Europe came after the introduction of the printing press – Sabellico’s protection for his book Decades rerum Ventarum was granted in 1486 and Petrus Franciscus de Ravenna’a grant for Foenix was made in 1491. A French system of privileges started in 1498.

[2] For a detailed examination of the activities of the Stationers and their role in the regulation of printing activities in England 1475 – 1642 see Chapter 3 D.J. Harvey The Law Emprynted and Englysshed (PhD thesis, unpublished) available at (last accessed 29 January 2013)

[3] By the 1440s the Stationers were known as the “Mistery of Stationers” although they were known as Stationers before that. In 1407 they were delegated with the task of providing copies of religious books that had been approved by the authorities following the suppression of the Lollards – a group of religious non-conformists led initially by John Wyclif.

[4] The Decrees were in fact the decisions of the Court of Star Chamber designed to address the various issues that had arisen in a number of cases involving complaints of printing patent infringement and aimed to set in place rules and structures so that patent holders would continue to receive exclusivity.

[5] See Harold Love Scribal Publication in Seventeenth Century England (Clarendon Press, Oxford, 1993).

[6] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn

apprentice de le comen ley (Richard Tottell, London, 1571) STC 20040.

[7] Edward Coke, Les reports de Edward Coke L’attorney generall le Roigne de diuers resolutions & iudgements donnes auec graunddeliberation, per les tresreuerendes iudges, & sages de la ley,de cases & matters en ley queux ne fueront vnques resolue, ouaiuges par deuant, & les raisons, & causes des dits resolutions

& iudgements, durant les tresheureux regiment de tresillustre &renomes Roigne Elizabeth, le founteine de tout iustice, & la viede la ley (Adam Islip, London, 1600) STC 5493. 11 subsequent volumes were printed under Coke’s supervision. The twelfth volume was published posthumously. See also the publication of The first part of the Institutes of the lawes of England. Or, A commentarie vpon Littleton, not the name of a lawyer onely, but of the law it selfe. (Adam Islip for the Stationers, London, 1628) STC 15784 which became a standard text on land law.

[8] In addition manuscript circulation allowed the dissemination of unpopular or contentious political or religous content within a limited audience away from the critical gaze of print licensors. The recognition of the power of the manuscript and its circulation among coteries can be seen in the activities of the Crown to secure the libraries of Thomas Norton, Sir Robert Cotton and Sir Edward Coke after their deaths.

[9] (1769) 4 Burr. 2303, 98 ER 201.

[10] (1774) 2 Brown’s Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 ; 17 Cobbett’s Parl. Hist. 953 (1813).

[11] 1 Wm. Blackstone 301, 96 ER. 169 [1761]. Reargued: 1 Wm. Blackstone 322, 96 ER 180 [1762].

[12] Although they could manually transcribe a book should they want to, although that would amount to copyright infringement.

[13]  239 F.3d 1004 (2001).

[14] 180 F.3d 1072 (9th Cir. 1999).

[15] 273 F. 3d 429 – Court of Appeals, 2nd Circuit 2001.

[16]  545 U.S. 913 (2005).

[17] [2002] 55 IPR 429 (Ch).

[18] [2004] EWHC 1738 (Ch).

[19] (2003) 129 FCR 472.

[20]  (2005) HCA 58.

[21] 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).

[22] [1987] 3 All ER 151.

[23] Charles Clark ‘The Answer to the Machine is in the Machine’, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).

[24] Sony v Stevens above n. 19.

[25] Above n. 16.

[26] Above n. 17.

[27] Above n. 8.

[28] Marshall McLuhan Understanding Media: The Extensions of Man (Sphere Books, London, 1967).

[29] “Welcome to the Machine” Pink Floyd Wish You Were Here (1975 Pink Floyd Music Publishers Ltd., London, England) Track 2

[30] “But the Banshee brouhaha is yet another signal that modern viewers want more pick-and-choose flexibility. And also how hard it is to stamp something out on the intrawebs. For as I type, the first episode of Banshee is still available full and free to Kiwis through Cinemax’ website here “ (

Chris Keall “Sky TV gives HBO a nudge after hot new series Banshee put free online for Kiwis”  Keallhauled National Business Review Online 16 January 2013 (last accessed 16 January 2013)

[31] For a discussion of “spoilers” and television see Henry Jenkins Convergence Culture: Where Old and New Media Collide (New York University Press, New York 2008 especially Chapter 1 “Spoiling Survivor – The Anatomy of a Knowledge Community” at p. 25 et seq.

[32] For a pessimistic view of the “rewiring” effect see Nicholas Carr “Is Google Making Us Stupid” The Atlantic July/August 2008  available on-line at (last accessed 17 January 2013) and for a detailed approach see Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London, 2010).

[33] Above n. 27.

[34] The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[35] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[36] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[37] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[38] Marshall McLuhan and Quentin Fiore  The Medium is the Massage: An Inventory of Effects (Penguin, Harmondsworth 1967).

[39] The title of Bob Dylan’s fifth album released 27 March 1965 and released by Columbia.

[40] Universal Declaration of Human Rights GA Res 217A, A/810 (1948) art 27.

[41] Committee on Economic, Social and Cultural Rights General Comment No 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author E/C12/2005 (2005) art 15(1)(c).

[42] International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 19

December 1966, entered into force 3 January 1976).

[43] Article 19 reads as follows:

1.             Everyone shall have the right to hold opinions without interference;

2.             Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.             The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)           for the respect of the rights or reputations of others;

(b)           for the protection of national security or if public order or of public health or morals.

[44] ECHR Appl. nr. 36769/08.

[45] Laurence R Helfer and Graeme W Austin Human Rights and Intellectual Property: Mapping the Global

Interface (Cambridge University Press, New York, 2011).

[46] Graeme W Austin “Property on the Line: Life on the Frontier Between Copyright and The Public Domain” [2012] 43 VULR 1 at 14.

[47] Rebecca Giblin Code Wars: 10 Years of P2P Software Litigation (Edward Elgar Publishing,  2011); Rebecca Giblin , “On the (New) New Zealand Graduated Response Law (and Why It’s Unlikely to Achieve Its Aims)” (2012) 62(4) Telecommunications Journal of Australia 54.1-54.14. Available at SSRN: (last accessed 17 January 2013).

[48] “We Can Work it Out” John Lennon and Paul Mcartney 1965, released as the B-Side to the single “Day Tripper”

Upon reflection, the lyrics may seem apposite to the current problem:

“Try to see it my way

Do I have to keep on talking till I can’t go on?

While you see it your way

Run the risk of knowing that our love may soon be gone”

[49] I use the terms “copyright” and “copyright owner” in this context only because I have not devised a label that aptly fits within the new model and that is not clumsy.

[50] “When the Music’s Over” Jim Morrison, Ray Manzarek, Robby Krieger and John Densmore (The Doors)  “Strange Days” The Doors Elektra Records 1967 Track 10.

Divine Art, Infernal Machine – Review

Book Review: Elizabeth L. Eisenstein Divine Art, Infernal Machine: the Reception of Printing in the West from First Impressions to the Sense of an Ending (University of Pennsylvania Press, Philadelphia, 2011)

If Elizabeth Eisenstein had published nothing after The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early Modern Europe her reputation as an historian based on her ground breaking work on the impact of a new information technology would have been assured.  However she didn’t stop there.  The 1972 publication of  The Printing Press as an Agent of Change  was followed in 1983 by The Printing Revolution in Early Modern Europe which was a condensed version of the greater work.

Eisenstein’s views are controversial.  Apart from her work being a departure from the traditional  “History of the Book” line, some of her methods, including a tendency to make sweeping generalisations at times, came in for stringent criticism.   Adrian Johns in his The Nature of the Book  published in 1998 was particularly critical of Eisenstein’s “Properties of Print” approach. “Where she is interested in qualities”, he said “I want to know about processes”  suggesting, for example, that a conclusion about the credit worthiness of a book may involve an awareness about its conditions of production.  Johns does not negate the historical importance of printing, but suggests that the development and consequences of print should be explained in terms of how communities involved with the book in various roles put the printing press and its products to work.  Eisenstein’s rejoinder to Johns view was his was that of a retrospective historian, his construct being a modern one and not one of the 18th century.

David McKitterick in Print, Manuscript and the Search for Order 1450-1830 held that print did not engender the quality of fixity that Eisenstein claimed, but the texts were unstable and error ridden thus reflecting a lack of credit on the part of readers.  Joseph Moxon’s book on the Art of Printing suggested that in fact there was orderliness and responsibility within the trade but McKitterick’s opinion was that early printed books revealed compromise, inconsistency, changes of mind, botched work, errors and incomplete publications.  McKitterick claimed that it took much longer than suggested by Eisenstein for print to gain credibility and the element of fixity as a determinant of textual accuracy and truth as being the subject of challenge by others apart from Johns and McKitterick along with the significance of dissemination.

Other criticism of Eisenstein’s work encompassed her methodology and utilisation of secondary sources rather than archival material.  In addition, the nature of her discursive analysis and interpretation of evidence, the tentative nature of the outcome, the overstatement of her conclusions, the lack of empirical evidence, the counter blast that the printing press caused nothing and the ethnocentric European focus of the study are all indicative of a significant academic reluctance to unreservedly accept her bold hypothesis.  Even so, Eisenstein’s book has not been despatched to oblivion.  Quite the contrary.  In 2007 the book Agent of Change: Print Culture Studies after Elizabeth L Eisenstein and the essays contained in it reflect significantly upon Eisenstein’s hypothesis and, whilst not necessarily agreeing with it entirely, indicate its importance and the contribution that she had made.

Late last year, and quite by accident, I came across a clip on YouTube in which Elizabeth Eisenstein gave a lecture at the Library of Congress in Washington DC.  It was gratifying to see that she is still with us.  It is even more gratifying to see and hear that the mind is as sharp as ever and the subject matter of her discussion was her new book Divine Art, Infernal Machine: the Reception of Printing in the West from First Impressions to the Sense of an Ending.  It is another magisterial work and in many respects is similar to The Printing Press as an Agent of Change.  A significant portion of the book covers  the same ground – up until the end of the 18th century – but has a different point of focus.  However it would be fair to say that many of the examples to which she refers in Divine art, Infernal machine are present in The Printing Press as an Agent of Change.

What Eisenstein attempts to do in her latest work is to assess how readers responded to the new technology and consider the  attitudes towards printing and printers by observers in the Western World.  Eisenstein herself acknowledges that the field is too large to be covered in a single book.  Its chronological range, she says, extends to far even to be covered in a multi volume collaborative work.  However, once again, she takes the broad view and at the same time answers some of her critics.

Yet she recognises at the same time the paradigmatic nature of the change engendered by the printing press and refers on occasion to new media suggesting that current reactions to the digital paradigm may lead to a more sympathetic understanding of previous reactions to older ones.

But she makes the point that notwithstanding enthusiastic response to the introduction of print – a theme repeated over the centuries – it did have its opponents.  She makes reference to the often citedcomment of 1671 by William Berkeley, Colonial Governor of Virginia, who said

“I thank God there are no free schools nor printing and I hope we shall never have these for a 100 years; learning has bought disobedience and heresy and sects into the world and print has divulged them….God keep us from both.” 

Eleven years later in 1682 after an abortive attempt to set up a press in Jamestown, a new Governor enforced the Royal Order that “No person be permitted to use any press for printing upon any occasion whatsoever.”  Within that background, which perhaps reflects Restoration attitudes towards the printing press as reflected in the Licensing Act in 1662 in England, an early context for the  First Amendment to the Constitution on the United States just over a century later is set in sharp focus.

From a structural point of view Eisenstein’s chronological approach is satisfactory.  It is difficult to imagine a better way of approaching a developing subject and although the trend in history writing may tend towards a thematic approach, Eisenstein develops her themes within her time periods.  She commences with the beginning of printing and examines some of the myths that surrounded the invention of the press and those associated with it,   followed by her view of what she describes as initial reactions.

One aspect that she considers is what was referred to by J W Saunders as the Stigma of Print – an attitude of which she is somewhat dismissive.  Indeed she reduces it to “the stigma of verse” and even then such attitude was not realistic.  Nevertheless she does recognise the tendencies that some poets had – John Donne among them – for coterie publication in manuscript form rather than in print.  Coterie publications were intended for a small group and did not justify the cost of putting the particular work into print.  Coterie publication was a specialised and limited form of publication by  some of the Tudor and early Stuart poets and was an aspect of information sharing by Early modern English lawyers in the Inns of Court who would share their case notes among themselves, only having them published in print in extreme circumstances.  The publication of Plowden’s Commentaries in 1571 provides an example. However, the poet and playwright Ben Jonson was an exception, and was a keen publicist of his “works” resulting in the following exchange:

To Mr. Ben. Jonson demanding the reason why he call’d his playes works.

 Pray tell me Ben, where doth the mystery lurke,

What others call a play you call a worke,

 Thus answer’d by a friend in Mr. Jonsons defence.

 The authors friend thus for the author sayes,

Ben’s plays are works, when others works are plaies.

(Epigrams 269 and 270, Wits Recreations, 1640. Quoted in Herford & Simpsons, Ben Jonson, IX, p.13)

Any examination of print and its development cannot by-pass the impact of the printing press upon religious discourse but Eisenstein makes the interesting observation that print was not only used by Protestants during the Reformation but in pre-Reformation times was eagerly seized upon by the Catholic Church.  She also considers the shift from using print as a means as a religious advocacy to pamphlet and broadsheet printing as a political tool in the 1640s.

In the third chapter she takes up the theme of the Renaissance and the Scientific Revolution which she explored in The Printing Press as an Agent of Change but on this occasion the perspective is viewed from that of the user.  The chapter is entitled “After  Erasmus: Propelling the Knowledge Industry” and deals first with the advancement of learning.  Erasmus, of course, must feature in such an examination although, as was the case in  The Winter King by Thomas Penn, Erasmus is displayed with all of his foibles rather than the grand leader of European humanism which seems to have been present in earlier portrayals.  The second part of the chapter on the knowledge industry addresses a problem currently faced in the digital paradigm – information overload arising from the vast number of books that were being printed and the difficulty that readers had in keeping up with the constant flow of publications.

Eisenstein then turns to the Eighteenth century and adopts a transatlantic approach in part, examining the Wilkes affair and printers of political works along with  attitudes to the printing trade and the debateable output of Grub Street.

The fifth chapter is entitled “the Zenith of Print Culture”  and considers the Nineteenth century, industrialisation and the importance of technical advances in print with mechanised printing press whilst at the same time considering the portable press developed by Stanhope.

In the “Newspaper Press” she contemplates whether or not newspapers would mean an end of books and then brings the book to a close in the final chapter covering fin de siecle through to the present.

Again the book is sweeping and little has changed in Eisenstein’s style since The Printing Press as an Agent of Change.  Nor has the use of secondary material diminished.  Thomas Jefferson’s oft quoted preference for papers without a government is referenced not to a collection of Jefferson’s letters but to a secondary source in which the quote is contained.  This is the case of many of the quotations from contemporary authors and from my perspective it would have been preferable of the original source to have been cited if it had been in print, or at worst a collection of the works by an editor.  Eisenstein’s preference for citation of sources is not fatal but for those of us who have been bought up in the school of primary sources it is a little disconcerting.

An interesting observation was made in an early stage in the book to the way in which printing made works that had been available in manuscript more available to a wider audience.  The following passage appears:

“Jealous collectors are chided for selfishly worrying that their own rare manuscripts would be devalued by the increased output of texts.  This same theme would be sounded later in Elizabethan England by the first publisher of a vernacular poetry anthology.  Robert Tottel argued against “the ungentle hoarders up of such treasure” that publication was benefit to the “studious of English eloquence”.

It is cited in the footnote as “Richard Tottel “the printer to the reader” Tottel’s Miscellany 1557 to 1587 Ed Hyder  E Rollins Cambridge 1928 lines 14-15.”  The footnote demonstrates the error and the printer Tottel’s name is properly recorded in the footnote. I can only conclude that the reference to Robert Tottel is a proofing error. I cannot quibble at the use of an edited collection but to be complete the reference came from Tottel’s address “To the reader” from Songs and Sonnets written by the Right Honourable Lord Henry Howard late Earl of Surrey and others printed by Tottel in 1557.

Anything by Eisenstein on print history commands attention,  this book no less.  Nevertheless I had the uncomfortable feeling that in much of what I was reading I was considering a reflection The Printing Press as an Agent of Change  but once one got past the Eighteenth century and well away from the Early modern period the work took on a new life.  I wonder if in some respects attempting to deal with Adrian Johns’  critique, she was concerned about people’s reactions to print and in some respects this would seem to be the case.  On occasion, she makes reference to her properties of print she developed in Chapter 2 of The Printing Press as an Agent of Change having greater context to demonstrate the validity of her argument expounded in the earlier work.  On the other hand she does not ignore the negative and that the reception of print was not universally acclaimed.   In some cases it was but in many cases what was at issue was not the medium but the message.  However, there are some occasions when the two become conflated.

Nevertheless the work is a useful addition to the scholarship and within the compass of 245 pages a considerable amount of ground is covered, subject however to Eisenstein’s own warning about the complexity of the subject.  I have no doubt, as was the case with the The Printing Press as an Agent of Change, Eisenstein’s latest work will provide a spring board for further writings in the print scholarship field.

Lawyers, Judges and the “New” Media

Lawyers, Judges and the “New” Media


It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.

John Rastell and Anthony Fitzherbert

John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.

From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.

He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.

Rastell’s Prologus to the work states:

And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same

Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]

La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings.  A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.

A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.

Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.

Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own

The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of  harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.

Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.

The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law  “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]

Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]

This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.

The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”

Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should

“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]

Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.

The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.

There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.

Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.

The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]

Edmund Plowden

Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley  a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:

[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]

The second was,

to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]

But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.

Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books.  This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.

Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.

“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me  to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”

Plowden’s attitude towards the concept of authorship is unusual.  There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it.  Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication.  Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.

Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.

Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.

So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]

The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions  of others ensured that advantage was taken of those qualities.

And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.

Sir Edward Coke

Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh  and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.

Coke was appointed Chief  Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James  I

But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.

In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]

Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.

“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]

Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.

“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……

I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]

At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:

For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]

and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]

The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:

“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance.  But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]

Coke’s value upon education and learning appeared in the second volume of the Reports:

There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]

It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.

“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]

In his discussion of the style of his case reporting Coke gave further advice to students.

“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]

Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]

Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.

The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects

“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]

As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports

“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……

And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….

A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]

It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:

“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading.  But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]

The educational importance of his work was continued in the  Book of Entries in which it was stated on the title page  that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.

Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.

Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.

“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]

By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:

“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]

Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all.  Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.

“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]

And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:

“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]

By the Eighth Volume Coke had refined what he considered his duty to publish Reports

“So ought every man according to his power, place & capacity  to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such  mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having  observed many things concerning  my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]

and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]

The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.

“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]

The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47]  Coke superficially complied and addressed one law suit.  That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant  the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]

But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued  ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]

When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.

But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.

Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.

[1] The other most notable one  of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.

[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.

[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702

[4] Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.

[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.

[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.

[7] John Rastell, above n. 3.

[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103  for discussion of their role.

[9] Sonny Bono 1967.

[10] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley (Richard Tottell, London, 1571) Preface

STC 20040

[11] Ibid.

[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.

[13]  Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.

[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.

135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print –  A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.

[15] Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.

[16] 2 Cokes Reports p.viii (preface).

[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3rd ed) (Butterworths, London, 1990)  p. 180.

[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.

[19] 4 Coke Reports Preface

[20] 1 Cokes Reports.

[21] Ibid.  “The Preface to the Reader.”  Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader”  Folio C2 pages unnumbered.

[22] 7 Cokes Reports The Preface  Folio aiii pages unnumbered.

[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.

[24] It is not clear on the face of the Reports where Coke’s interpolations occur.

[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.

[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.

[27] 4 Cokes Reports Folio B3 pages unnumbered.

[28] 2 Cokes Reports  “To the Learned Reader”  ¶3 pages  unnumbered.

[29] 1 Cokes Reports “Preface to the Reader” page unnumbered.

[30] Ibid.

[31] 3 Cokes Reports.

[32]  Glanvil, Bracton, Britton, Fleta, Ingham and Nova Narrationes

[33] The Old Tenures, the Old Natura Brevium, Littleton, Doctor and Student, Perkins, Fitzherbert’s Natura Brevium and Stanford’s Plees de la Coron.

[34] 10 Cokes Reports.

[35]  3 Cokes Reports.

[36]  5 Cokes Reports “To the Reader” Folio Aiiii pages unnumbered.

[37]  6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.

[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..

[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.

[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.

[42] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[43] 8 Cokes Reports “To the Reader” Folio Aii page unnumbered.

[44] Ibid.

[45] 10 Cokes Reports “To the Reader”  pages unnumbered.

[46] 11 Cokes Reports “To the Reader”  pages unnumbered. The Twelfth Volume and Thirteenth volumes were printed posthumously in 1656.

[47] The letters of John Chamberlain, ed. N. E. McClure, 2 vols. (1939) 2.14

[48] Ibid. 2.34

[49] C. Russell, Parliaments and English politics, 1621–1629 (1979) p. 352

Bosworth Field and the new Information Technology

The Battle of Bosworth Field was fought on 22 August 1485 and brought to an end the Plantagenet dynasty which had reigned over England from the days of Henry II. The debate about whether Richard III was as bad as Shakespeare painted him will continue. We have got to remember that Shakespeare was a child of his time. His queen was the grand-daughter of the victor of Bosworth – Henry VII – and it didn’t do to upset the ruler. The Tudors were very concerned with image – the subject of the late Kevin Sharpe’s excellent book Selling the Tudor Monarchy: Authority and Image in Sixteenth Century England[1]. The sources available to Shakespeare may have included Raphael Holinshed’s Chronicles of England, Scotland and Ireland,[2] Thomas More’s History of Richard III [3]  and  Polydore Vergil’s Historia Anglica[4]. Shakespeare’s Richard III was written in 1591 when all of these sources and possibly some others would have been available.

What is important is that all these works were in print and although Vergil’s book was printed in Basle, it is not inconceivable that copies found their way to England. The book was in Latin and would therefore have avoided the restrictions on importation of books printed overseas in English – a protectionist move for the benefit of English printers and latterly to prevent the importation of works which were anti-Elizabeth and designed to appeal to recusant Catholics.

Both Richard III and his successor Henry VII were aware of and fostered the development of the of a new information technology – the printing press.

The printing press had been introduced to England by William Caxton who learned the trade in Bruges. He set up the first press in Westminster during the reign of Edward IV.

Caxton Showing the First Specimen of His Printing to King Edward IV at the Almonry, Westminster (1851 Daniel Maclise (1811–1870)

The early history of print in England up until 1513 is characterised by two factors. The first is that within eight years of the introduction of the press there was legislation in place to enable the industry to develop. The second was an absence of native born English printers, with the exception of Caxton.[5]  This was not unusual in the early history of the spread of the new technology. As the printing press spread through Germany, German craftsmen took it to other countries and in doing so passed on the skills of the craft to the natives of the new country, who in turn took the new craft with them to other countries.[6] John Lettou, of Lithuanian origin, established himself in the City in 1480 and in 1482 was joined in partnership by William de Machlinia, a native of Mechlin in Flanders.[7]  Together, in 1481, they printed a well-known law book  Tenores Novelli.[8] This was the first law book printed in England.

English authorities were often concerned at the impact that aliens had upon trade and commerce in England and often steps were taken to limit the foreign dominance of aspects of trade important to England. Foreigners were divided into two categories – aliens and denizens – and in any new regulatory activities dealing with foreign trade, it was against the aliens that the steps were initially taken. Denizens, who were foreigners who had been admitted to residence and who had certain rights,[9] could find themselves restricted in their activities.

So it was that in 1483 Parliament petitioned Richard III to address grievances against Italians[10] who, it was claimed were price fixing, buying up imported goods and re-selling them, sending their profits and bringing in other foreigners to work with them. As a result, the King’s subjects were unemployed and had turned to idleness with a consequent increase in the numbers of thieves and beggars. It was claimed that the inhabitants of “Citees Burghes and Townes in late daies have fallen and dailly falle unto grete poverty and dekay.”[11]

However, this statute, designed to severely regulate the conditions under which aliens could trade in England, contained a proviso which reads as follows:

“Provided alwey that this Acte or any part thereof, or any other Acte made or to be made in this present Parliament, in no wise extende or be prejudiciall any lette hurte or impediment to any Artificer or merchant straungier of what Nacion or Contrey he be or shalbe of, for bryngyng into this Realme, or sellyng by retaill or otherwise, of any man’s bokes written or imprinted, or for inhabitynge within the said Realme for the same intent or to any writer lympner bynder or imprinter of suche bokes as he hath or shall have to sell by wey of merchaundise, or for their abode in the same Reame for the exercising of the said occupacions; this Acte or any parte therof notwithstanding”[12]

This is a most significant proviso. It has been suggested that its inclusion was at the behest of John Russell, a bibliophile and member of the King’s Council, possibly influenced by the marketing activities of Peter Actors who was an importer of books and who had been a supplier of books to the principal fairs with his partner Joannes de Aquisgrano.[13]

The importance of the proviso may be summarized as follows. First, it indicated quite clearly that a value was placed upon books and that there was recognition of the importance of the newly introduced craft of printing which was relatively poorly developed in England. Secondly, it ensured that the continued and future presence of foreign craftsmen who were skilled in the new technology would be encouraged to come to England and continue to develop the trade. Thirdly, although this was a most important encouragement for printing, the proviso also extends to writers, limners and binders – those involved in the scribal production of books. Thus the encouragement was for book production generally, and it is probable that the Stationers’ Company, which represented native craftsmen and shopkeepers, must have approved of this specific exclusion.[14]

The 1484 Statute demonstrates what was to become a trend – the use of statute to regulate the printing trade directed primarily towards industry regulation rather than content regulation.[15]

A recognition of the developing importance of print in government came in 1485 when, on 5 December, Peter Actors, an early beneficiary of the proviso, was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc thereon and without rendering any accompt thereof.”[16]

Henry VII utilized print for propaganda purposes and was the first English monarch to do so,[17] but he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.[18] It was one of the first publications to recognize the wide dissemination that the new technology allowed, and the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications.[19] It also made very clear that ignorance of the law could not be claimed when material was available in print.[20] The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated the technology of print.

“and to thentent they have no cause to excuse theim of their offences by pretense of ignorance of the saide ordenances, his highnesse hath ovir and above the open proclamacion of the saide statutes communded and ordeyned by wey of emprynte diverse and many several bokes conteignyng the same statutes nto be made and delivered to the capitaignes of his ost charginge them as they wyl avoyde his grete displeasure to cause the same twyes or ones at the lest in every weke hooly to be redde in the presence of their retinue.”[21]

 Up until the 1520’s there was a relatively  unregulated market for printers and for printed books. The craft grew by leaps and bounds. The five printers in London had grown to thirty-three printers and booksellers by 1523 and the English market was becoming less dependent upon imported material.[22] John Rastell, a lawyer-printer began printing in 1513 and was joined thereafter by a growing number of English printers.

The importance of printing and its status continued to be recognized by the Crown and the office of King’s Printer which was not an honorary one, became a tool of Government. The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”[23]

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicized, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognized. Large numbers of identical publications could be readily spread throughout the Kingdom. On the other hand it was recognized that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

For approximately thirty years the printing trade developed in England with little restriction, but it was with the advent of Luther’s teachings on the Continent, coupled with economic concerns that were developing about the condition of the English labour market that restrictions on the trade and business of printing and the control of the content of works being printed attracted the attention of the State and the intervention of the law.

Bosworth Field may have resulted in a changed dynasty but both monarchs contesting the Crown recognised the importance of the new information technology. It was to grow and become a potent force, especially in the hands of Henry VIII and Thomas Cromwell – but that is another story and for another day

[1] Yale University Press, 2009.

[2] At London printed by Henry Denham in Aldersgate street at the signe of the Starre, 1587. The first volume was printed in 1577 and took the history until the Conquest. The printing of the first and second volumes took the history  through to 1586

[3] Printed posthumously in 1557 in The Workes of Sir Thomas More Knyght sometyme Lorde Chancellour of England wrytten by hime in the Englysh tonge  (At the costes and charges of Iohn Cawod, Iohn Waly, and Richarde Tottell, Anno. 1557) and edited inter alia by his nephew William Rastell – see pages 35 et seq of the 1557 edition although there is some suggestion that More’s patron John Morton Archbishop of Canterbury was the source for much of More’s information

[4] Although that work was printed in Basle in three editions – 1534, 1546 and 1555 and not in England

[5]  Bennett H.S. English Books and Readers 1475-1557 : Being a study in the history of the book trade from Caxton to the Incorporation of the Stationers Company (Cambridge University Press, Cambridge, 1952) – [referred to hereafter as 1 Bennett]  p. 30.

[6] John Feather, A History of British Publishing (Croom Helm, London, 1988)  p. 14. Richard  Pynson and William Faques were Normans and John Notary was probably French.

[7] Colin Clair A History of Printing in Britain (Cassell, London, 1965) p. 32.

[8] Littleton’s Tenures. J.H Beale A Bibliography of Early English Law Books (Harvard University Press, Cambridge Mass, 1926)  p. 182  The 1481 printing does not appear in the Short Title Catalogue  but records Machlinia’s printing of the Tenures in 1483 STC 15720.

[9] 1 Bennett p. 30.

[10] 1 Ric 3 c.9.

[11] Ibid.

[12] Ibid.

[13] Clair above n. 7 p. 104; C. Paul Christianson “The Rise of London’s Book-Trade”  in L. Hellinga and J.B.Trapp (eds) The Cambridge History of the Book in Britain – Volume III – 1400 – 1557 , (Cambridge University Press, Cambridge, 1999)  p. 137. Actors was appointed Stationer to the King in 1485. See below.

[14] Cyprian Blagden The Stationers’ Company – A History 1403 – 1956 (Allen & Unwin, London,  1960), p. 24.

[15] Certainly there were later statutes which prohibited the use of writing or printing as a means of expressing or as a constituent of heresy or treason, e.g. the Treasons Act 1534. The objective of such legislation was directed more toward content.

[16] Clair, above n. 7, p. 105; Christianson  above n.13  p. 137. Actors was appointed Stationer to the King in 1485. E. Gordon Duff A Century of the English Book Trade ( The Bibliographical Society, London, 1948) p.xii-xiii. Kevin Sharpe in Selling the Tudor Monarchy above n. 1 p.65-6 notes a suggestion that Henry VII was slow to grasp the full potential of printing observing that Faques was not appointed the first Royal Printer until 1506. While the approach based on the title is correct, there can be no doubt that Faques fulfilled the same role under different nomenclature. Perhaps Henry was more alive to print potential than may be immediately apparent. Faques was followed in that position by Richard Pynson in 1508, Thomas Berthelet (1530), Richard Grafton (1547), John Cawood (1553) and Cawood with Richard Jugge (1558). 1 Bennett p.38.

[17] Ibid. Sharpe

[18] Printed by Richard Pynson STC 9332.

[19] Pamela Neville Sington “Press, Politics and Religion” in L. Hellinga and J.B. Trapp (eds) Cambridge History of the Book in Britain – Volume III – 1400 – 1557 (Cambridge University Press, Cambridge 1999) Volume 3p. 578.

[20] The issue of ignorance of the law as a concept in the early modern period is rather complex and beyond the scope of this piece.

[21] STC 9332.

[22] Clair, above  n. 7, p. 105.

[23] Neville Sington above n. 19  p. 605-6.