Who Owns a Text? Robinson Crusoe as a Test Case for Copyright Law

By: Bailey Bogle
Daniel Defoe in the Pillory. Lilly Library, Indiana University.

In 1702, Daniel Defoe enraged those in power by writing The Shortest Way with the Dissenters, a political tract in which he criticizes the Church of England.[1] Though he published the tract anonymously, he was tracked down and held liable for this act of “seditious libel,” ultimately spending time in jail and paying a hefty fine. As if this were not bad enough, while suffering his punishment, Defoe watched helplessly as the printer John How published a volume of his works, including the very tract which had landed him in prison.[2] Though Defoe had to pay the price for his words, England’s lack of authorial copyright protection left him without any legal claim to them, and printers like How were free to profit off of his work without repercussions. This would not be the only time Defoe dealt with piracy or prison, but the injustice of the situation likely sparked his desire for copyright protection. Defoe soon became a public advocate for a legal conflation of authorial liability and ownership.

For much of the 17th century, English printing was largely controlled by a monopoly of London printers known as the Stationers’ Company. Though the Crown maintained ultimate control over publication, it mostly exercised its power over important, commonly available works like the Bible and legal writings. Most other licensing power was vested in the Stationers’ Company, a choice that came into practice in 1557 when Queen Mary granted the company a royal charter so that it may censor any “seditious and heretical” works (those that may undermine the Crown’s or Church’s authority).[3] Though Queen Mary died just one year later, the government still needed a way to regulate the press, and so the Crown continued to privilege the company with a “degree of monopoly” greater than that of any others.[4] The Stationers’ Company quickly grew to dominate the publishing market thanks to the privileges it earned alongside its continued censoring of texts, so the deal was as economically beneficial as it was politically loyal. These advantages were cemented with the passage of the Licensing Act in 1662, which required the approval and licensing by either the Crown or Stationers’ Company before the printing of any English text.[5] Thus, “the censorship of the press was formally and strategically linked to the protection of the economic interests of the Stationers’ Company.”[6]

In 1695, though, the licensing act expired and was not immediately renewed, opening up a debate about press regulation and, with it, questions of ownership and liability. In the midst of this debate and just two years after his stint in prison, Defoe put out An Essay on the Regulation of the Press.[7] In his Essay, he acknowledges the need for regulation but implores lawmakers to create a clear, legal standard for what is and is not seditious or libelous, so that the biases of subjective regulators’ will no longer be a problem. After all, if there’s no surefire way to know that a piece of writing will be illegal, then how can a well-intentioned writer avoid punishment? Furthermore, and perhaps keeping his foe John How in mind, Defoe argues for a conflation of authorial liability and ownership. He reasons that requiring authors to print their names on their work, while also protecting authors’ rights to own their texts, would both encourage creative work and make regulating texts easier. It would also make no-longer-anonymous authors think twice about publishing seditious texts in the first place. Defoe was not the first to advocate for authorial ownership, but he was the first to write about it in the context of legal liability.[8] Perhaps the greater effect of this was its illumination of the hypocrisy underlying the cultural and legal assumption of authorial liability: if an author is ultimately the owner of his or her words for liability purposes, then why not for ownership? Though Parliament may not have adopted Defoe’s ideas in totality, his writings seem to have had at least some influence, and in 1710 the Statue of Anne–one of the first legal recognitions of copyright–passed.[9]

Under the statute, authors did not have to put their name on the title, but they did have to register their works with the Stationers’ Company to receive copyright protection (and thus to ensure their ability to profit). This allowed for fourteen years of protection, with the option to renew the copyright for another fourteen years in the case the author was still living. To accomplish this, Parliament did not link copyright to liability, as Defoe advocated for, but instead defined literary works as a sort of property: “As any common lawyer will tell you, lawmakers do not protect something because it is property, but rather call something property in order to protect it.”[10] This meant that copyright protection stood on untested legal ground, since property had previously been limited to physical items and been protected in perpetuity. The next few decades would be crucial for England as it grappled with questions of property, regulation, and ownership in a quest to more clearly define its laws. Authors who published during this time–like Defoe, who put out his most famous work just nine years after the statute’s passage–would be among the first to test the emerging legal and cultural conceptions of copyright.

First Edition of Robinson Crusoe, 1719. British Library.

When Defoe published his novel Robinson Crusoe in 1719, its popularity came swiftly and impressively. The novel was soon translated and spread rapidly throughout Europe. Today, it’s been published in thousands of different editions and in dozens of countries across the globe.[11] Soon after its release, it was met by dozens of imitative novels by authors hoping to capitalize on its popularity, and Defoe himself put out two sequels while the press was still hot. It was also met with widespread piracy, mostly in the form of chapbooks, heavily abridged editions that were printed and sold cheaply.[12] Over time, the beloved story has become a cornerstone of Western literature, inspiring thousands of adaptations and spawning an entire genre known as the Robinsonade.[13] (The similar novels that came before Crusoe have been recategorized as “pre-Robinsonandes.”) Some critics, like Ian Watt, even argue that Defoe’s novel, which is “almost universally known, almost universally known of as at least half real,” has transcended beyond its form as a novel to achieve the rare status of myth.[14] The novel belonged to Defoe, but its underlying story has been appropriated to the point that it “resembles one of the anonymous productions of the race itself rather than the effect of a single mind.”[15] With its resonance throughout Western culture and the sheer number of different forms that the story has taken on, this is hardly surprising. But when copying, editing, or adapting a story like Crusoe, where is the line drawn between fair use and copyright infringement? Legally, the answer was different in 1719 than it is today, but the wider cultural debate surrounding these questions is still going on.

The idea that a story can become detached from its creator and exist as a sort of myth or “anonymous production” was significant for the copyright law debates that emerged after the Statute of Anne’s passage.[16] Does a work belong to its author for control and profit, or does the public have the right to freely enjoy, adapt, and use it? Complicating Defoe’s case, facts are excluded from copyright protection, and he claimed that Robinson Crusoe was based on a true story, despite it clearly being mostly fabricated. (The novel is thought to be loosely based on Alexander Selkirk, a Scottish sailor who was willingly marooned on an island for four years.[17]) Defoe’s particular telling of the story–his unique arrangement of words on paper–was protected under the statute, but it was unclear if close “adaptations” of works were illegal under the statute (in most cases, they were not). Therefore, though the statute ensured that Defoe saw profit from his original text, he did not economically benefit from the proliferation of chapbooks, spin-offs, and adaptations of his novel, and he would not have been able to successfully sue the authors who undercut his work. It’s clear that the eras legal uncertainty contributed to the way Robinson Crusoe, in particular, was used so prolifically in England’s popular culture.

Stationers’ Company Blazon

Likewise, after Defoe’s death in 1731, it was unclear if works like Crusoe should remain protected by copyright law or enter the public domain. The statute’s limited terms of protection created ambiguity about the status of textual work as property. Though most property, like money and material goods, belongs to its owner in perpetuity and can be passed down through one’s estate after death, texts were considered quasi-property and only protected for a limited period of time. This is because lawmakers were attempting to strike a balance between promoting the public good (via establishing a public domain) and protecting intellectual property. Because authors often sold their copyright to publishing companies, publishers’ profits heavily depended on the length of copyright protection for texts, and their competing interests would not allow the statute’s ambiguity to remain unchallenged.[18] The Stationers’ Company, in particular, had a lot to gain from securing perpetual copyright because of the sheer number of books it held the copyright for, whereas many smaller, competing booksellers wanted the statute’s limited terms upheld so that they could finally print and profit off of works long withheld from them.[19] Though this legal debate was profit-driven for the publishers, at its core were questions about the definition of property and the purpose of printed texts.

This debate came to a head in 1769 with Millar v. Taylor, in which Andrew Millar, a bookseller, sued the printer Robert Taylor, who had printed a poem previously owned by Millar but that was then in the public domain due to the Statute of Anne. The courts sided with Millar, upholding the idea of perpetual copyright and effectively ending the entering of works into the public domain. Judge Yates spoke for the advocates of non-perpetually held copyright in his dissenting opinion by arguing that, once published, books become common and cannot be owned by anybody, including the author.[20] This isn’t to say that authors could not enjoy profit from their books; rather, Yates believed authorial copyright could not be legally considered a matter of property but one of trade regulation, instead.[21] Nevertheless, the London printers won their case, and it seemed that no work would ever be common. Five years later, though, Millar v. Taylor was overturned by the decision in Donaldson v. Becket, which concerned the same poem. This time, the court upheld the Statute of Anne and rejected the notion of perpetual copyright, establishing the right to a public domain (while still considering texts property). The legal tug-of-war over whose rights should take precedence–the authors to ownership and profit off of his or her work, or the publics to the enjoyment of a common domain–had been temporarily settled.

Copyright Act of 1790, U.S. Congress.

However, though this era of copyright history established the right to a public domain, the competing notion of rights first articulated in the 18th century has continued to shape copyright law and debate today. Most notable is the gradual strengthening of copyright protections for authors, which indicates a preference for protecting the right to property over the right to a common domain. For example, the first U.S. copyright law went into effect in 1790 and offered fourteen years of protection for authors.[22] After that, the U.S. government has steadily extended copyright protections to be more protective and last longer. Currently, U.S. copyright law protects works for the creators’ lifetimes, plus 70 years.[23] This continual increase in protections is not limited to the United States; in 1886, the first international copyright law standards were established with Berne Convention, which has been periodically updated to strengthen copyright standards. Similarly, the World Intellectual Property Organization was established in 1967 as an agency of the United Nations, and it now encompasses 192 “member states,” which must adopt its strong standards for copyright.[24] Countries like the United Kingdom, where much of Western copyright law was first established and where Robinson Crusoe was published, also have extended protections to authors and other creators over time.[25]

Modern challenges to copyright law–namely, the internet–have also inspired new forms of protection as legislatures seek to protect the property rights of writers and creators. The United States’ Digital Millennium Copyright Act of 1998, for instance, established new guidelines for electronic copies of copyrighted works.[26] It is not a simple matter to protect against copyright infringement on the internet, though, and the push for a more accessible public domain has only been intensified by the digitization of works. In an online world where more information is available to more people than ever before, it can be tempting to expand that cache to include works that would normally require licensing. For example, when Google attempted to scan and digitize every book ever written to create a free, online library, the company was met with criticism by publishers, authors, and legal scholars for what appeared to be blatant copyright infringement. The company was also accused of forming a monopoly over so-called “orphan books,” or works that are still under copyright but whose authors cannot be contacted.[27] Should the company have the right to create one of the most publicly accessible collections of works in history, or should the interests of copyright holders take precedence?

Oxford University Press Early Logo

Similarly, though academic usage of copyrighted materials has generally been exempted from copyright laws, the digitization of libraries and educational materials has called some practices into question. Most notably, a group of publishers (including the prolific Oxford University Press) recently sued Georgia State University for distributing copyrighted materials to students via online copies.[28] Georgia State was only found guilty of infringement for a few of the alleged accounts, but the case exemplifies growing concerns about the ways the internet is reshaping library usage of copyrighted materials, allowing many more students and patrons to access them than who could have before. It takes many years to reshape the laws in many countries, including the United States, and in the face of such rapid change to the way texts are distributed and consumed, it is no surprise that old debates are reemerging in new forms.

Robinson Crusoe is securely within the public domain at this point, and modern readers can enjoy the story in hundreds of retellings, interpretations, and adaptations. While creators are not unlimited in their legal usages of the mythologized story, they are only restrained by modern copyright protections, and one must look no further than popular retellings like Swiss Family Robinson and The Martian to see how the story exists today. Without the copyright debate that Defoe contributed to and legal decisions like the passage of the Statute of Anne and the decision in Donaldson v. Becket, one may not be so lucky. Now, though, one has to look no further than their local movie theater or bookstore to find Defoe’s legacy alive and well today.

[1] Defoe, Daniel. The Shortest Way with the Dissenters, Or, Proposals for the Establishment of the Church: To Which Is Added Some Reflections by Way of Answer. London, 1702. Print.

[2] Greene, Jody. The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730. Philadelphia: University of Pennsylvania Press, c2005, 2005. Web.

[3] Patterson, L. Ray. Copyright in Historical Perspective. Vanderbilt University Press, 1968.

[4] Patterson, L. Ray. Copyright in Historical Perspective. Vanderbilt University Press, 1968.

[5] England, Parliament. Bently, L., and Kretschmer, M., editors. “Licensing Act.” Licensing Act, 1662. www.copyrighthistory.org

[6] Deazley, Ronan. Kretschmer, Martin and Bently, Lionel, editors. “Commentary on the Licensing Act 1662.” (2008) Web. Jun 18, 2019.

[7] Defoe, Daniel. An Essay on the Regulation of the Press. London, 1704. Internet resource.

[8] Greene, Jody. The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730. Philadelphia: University of Pennsylvania Press, c2005, 2005. Web.

[9] The Statute of Anne. Tran. Parliament., 1710. Print.

[10] Ross, Trevor Thornton, 1961-. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain. Baltimore: Johns Hopkins University Press, 2018], 2018. Web.

[11] Glass, Grant. “Data.” Pirating Texts. Web. <https://orgilbatzaya.github.io/pirating-texts-site/data/>.

[12] O’Malley, Andrew. “Poaching on Crusoe’s Island: Popular Reading and Chapbook Editions of Robinson Crusoe” Eighteenth-Century Life 35.2 (2011): 18-38. Web.

[13] Gove, Philip Babcock, 1902-1972. The Imaginary Voyage in Prose Fiction; a History of its Criticism and a Guide for its Study, with an Annotated Check List of 215 Imaginary Voyages from 1700 to 1800. New York, Columbia University Press, 1941, 1941. Web.

[14] Watt, Ian. “Robinson Crusoe as a Myth.” Essays in Criticism 1.2 (1951): 95. ProQuest. Web. 21 June 2019

[15] Woolf, Virginia. “Robinson Crusoe.” Nation and the Athenaeum 38.19 (1926): 642. ProQuest. Web. 21 June 2019.

[16] Woolf, Virginia. “Robinson Crusoe.” Nation and the Athenaeum 38.19 (1926): 642. ProQuest. Web. 21 June 2019.

[17] Howell, John, 1788-1863, and Alexander Selkirk 1676-1721. The Life and Adventures of Alexander Selkirk: Containing the Real Incidents upon which the Romance of Robinson Crusoe is Founded. Edinburgh : Oliver & Boyd, 1829, 1829. Web.

[18] Ross, Trevor Thornton, 1961-. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain. Baltimore: Johns Hopkins University Press, 2018], 2018. Web.

[19] Ross, Trevor Thornton, 1961-. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain. Baltimore: Johns Hopkins University Press, 2018], 2018. Web.

[20] Ross, Trevor Thornton, 1961-. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain. Baltimore: Johns Hopkins University Press, 2018], 2018. Web.

[21] Ross, Trevor Thornton, 1961-. Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain. Baltimore: Johns Hopkins University Press, 2018], 2018. Web.

[22] “A Brief History of Copyright in the United States.” copyright.gov. Web. <https://www.copyright.gov/timeline/>.

[23] “A Brief History of Copyright in the United States.” copyright.gov. Web. <https://www.copyright.gov/timeline/>.

[24] “WIPO – World Intellectual Property Organization.” Web. Jun 21, 2019, <https://www.wipo.int/portal/en/index.html>.

[25] “A Brief History of Copyright Law in the UK.” Guidelines on Copyright and Academic Research. London: The British Academy, 2006. Print.

[26] The Digital Millennium Copyright Act of 1998. Tran. U.S. Copyright Office. Print.

[27] Picker, Randal. “The Google Book Search Settlement: A New
Orphan-Works Monopoly?” Coase-Sandor Working Paper Series in Law and Economics (2009). Web.

[28] Germann, Jonathan. “GSU Library Copyright Lawsuit.” Research Guides: Georgia State University. Web.

Header image: Scanned by Phillip V. Allingham. http://www.victorianweb.org/art/illustration/cassell/13.html

About the Author

Bailey Bogle is a junior at Duke University. She is majoring in English and minoring in philosophy. Bailey completed her research on Robinson Crusoe through the Story+ summer program, which is supported by the John Hope Franklin Institute of Humanities.