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Commemorating Intellectual Property Before It Was Law

Everyone likes an anniversary. It offers a moment of reflection and perhaps a piece of cake. It calls for looking back, if only, in this case, to that afternoon in high school history class in which you were presented with the Protestant Reformation. This is the five hundredth anniversary of Martin Luther, “Master of Arts and Sacred Theology, and ordinary lecturer therein at Wittenberg,” letting the world know that he intended to defend what has become known as The 95 Theses (actually entitled Disputation on the Power of Indulgences): “52. It is vain to trust in salvation by indulgence letters.” He sent his list to Archbishop Albrecht of Mainz, and as legend has it, posted it on the church doors of Wittenberg, as was the university custom for inviting participation in public disputations.

The 95 Theses was soon printed and was being sold throughout Europe. It sparked a pamphlet war that was to wreak havoc across the continent for many years. It was an early, massive demonstration of how the printing press could give voice to a new European spirit of individualism. Among all that Luther achieved, what I want to focus on briefly here is what it meant for the sense of intellectual property that was taking shape nearly two centuries before it took its modern legal form of copyright with Britain’s Statute of Anne 1710.

Printing was into its sixth decade at the time Luther composed The 95 Theses. The press had rapidly taken hold in European monasteries, workshops, and universities, and it was soon scattering Luther’s sermons and public letters like flying leaves (Flugblätteras) in Latin, German and other languages across the continent. His supporters were using this new communication technology, (well, excommunication technology in Luther’s case) to reshape both word and world.

The counter-attack against Luther came quickly, decisively, and, ultimately, ineffectively. Pope Leo X excommunicated Luther on January 3rd, 1521. In April, Emperor Charles V called upon Luther to appear before the Imperial Diet of Worms where his works and views were publicly denounced. Luther’s texts were particular objects of censure, in recognition of their standing and presumption an intellectual right to attack the church (much as Peter Abelard’s had been at the Council of Sens in 1141 suggesting the manuscript origins of this sense of intellectual property). The Imperial Edict of Worms, which appeared in May, made it clear that books could be the object of legal censure: “These books contain as much poison as they have words.” The texts had a legal standing by which people were forbidden to print, buy, sell, or teach such works. Luther was condemned for his ownership of such ideas, leading to the formation of, according to the Edict, a “law for printers to defend against the evils which come from the abuse of the praiseworthy craft of printing.” The Emperor’s assertion of rights over such intangible goods was soon followed by the Church’s version with Index Librorum Prohibitorum.

Not to be deterred by such bans, Luther set to work on serving what he saw as the public’s interest in such property rights, namely, to the word of God: “The soul can do without everything, except the word of God,” he wrote in On the Freedom of a Christian. He prepared German translations of the New and then the Old Testaments with help from his colleagues at Wittenberg, as well as others. Luther drew on Greek and Hebrew sources (rather than the more common Latin Vulgate) to preserve the original expression, as a scholarly responsibility, while rendering the text in the language of “the mother in the house, the children in the street, the common man in the market,” as he reflected on his translations and as you can hear in his text: “The mouth speaks from the abundance of the heart” (Matthew 12:34). He was advancing the people’s immediate right to the Word, given “that we are all equally priests.” He sought to extend this right through the schooling of the young (although not for the Jewish people: “Set fire to their synagogues or schools,” he wrote later in life).

Luther’s Biblical translations began to appear in 1522 (and continued for a dozen years). They went so quickly through numerous editions and reprints that by 1524, he was insisting that his personal signet be placed on the authorized edition. Here were the scholar’s intellectual property rights at work, as he took full responsibility for the work under his name, and he worked to increase access by the best means of the day: “We give this rule,” he wrote in On the Freedom of Christians, “the good things which we have from God ought to flow from one to another, and become common to all.” Through the power of print, the Reformation reset the play of intellectual and theological, political and legal rights. So our eyes might turn, in light of this anniversary, to today’s inchoate digital era. Could there lurk, beyond the disrupted cabs, phones, and presidencies, a reformation of our indulgences and rights on such a scale?

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