Scriptura und Buchdruck: Ueber die Ursprünge des Urheberrechts (Scriptura and Printing: on the Origins of Author's Rights)

Contemporary mainstream legal doctrine seems to widely agree that the origin of copyright and author's rights is closely connected to Johannes Gutenberg's invention of mechanical printing in the first half of the 15th century. The Statute of Anne, enacted in 1710, is usually cited as the first "Copyright Act" in a modern sense. However, there is also a school of thought suggesting that the roots of legal protection of authorship could be traced as far back as ancient Rome. This argument is based, most importantly, on an analysis of historical sources dealing with text written on paper belonging to somebody else and the question discussed by roman lawyers of who should be regarded as the owner of the resulting manuscript. This paper takes a critical look at both of these approaches - asserting the roots of copyright with the printing press and in particular, its first manifestation in the Statute of Anne as well as attempting to identify at least some embryonic form thereof in Roman antiquity. It is argued that the core question of copyright and author's rights was never mainly to whom such a right is supposed to be assigned, but much more and in the first place in what such a right actually should consist. It is, in other words, not about a property right in the classical, let alone material sense, but about where exactly the lines are to be drawn that define said right. We conclude that this problem was not solved before Immanuel Kant and Johann Gottlieb Fichte, when mechanical printing already had become a widespread technology and bookselling a viable industry across Europe and that the philosophical and political thought of the Age of Enlightenment was essential in the creation of copyright and author's rights