Authors and Owners

The Invention of Copyright

Mark Rose

• Publisher: Harvard University Press
• Year: 1995
• ISBN:
  9780674266803
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The notion of the author as the creator and therefore the first owner of a work is deeply rooted both in our economic system and in our concept of the individual. But this concept of authorship is modern. Mark Rose traces the formation of copyright in eighteenth-century Britain—and in the process highlights still current issues of intellectual property. Authors and Owners is at once a fascinating look at an important episode in legal history and a significant contribution to literary and cultural history.

1

The Question of Literary Property

What is an author? As Roland Barthes, Michel Foucault, and others have emphasized, the notion of the author is a relatively recent formation, and, as a cultural formation, it is inseparable from the commodification of literature. The distinguishing characteristic of the modern author, I propose, is proprietorship; the author is conceived as the originator and therefore the owner of a special kind of commodity, the work. This book, then, is concerned with the relationship between origination and ownership, and with the way these notions are incorporated in what Foucault calls “the solid and fundamental unit of the author and the work” (101).

The author and the work. The autonomous creator and the distinct literary object, unitary, closed, and caught up in relations of ownership. The author-work relation is embedded in library catalogues, the indexes of standard literary histories, and such basic reference tools as Books in Print. It is pervasive in our educational system, where students are typically taught from the canon of major works by major authors. It is also institutionalized in our system of marketing cultural products. Joyce Carol Oates, Saul Bellow, Zane Grey, Pablo Picasso, Leonard Bernstein, Stephen Spielberg, Clint Eastwood: the name of the author— or artist, conductor, director, or, sometimes, star, for in mass culture the authorial function is often filled by the star—becomes a kind of brand name, a recognizable sign that the cultural commodity will be of a certain kind and quality. No institutional embodiment of the author-work relation, however, is more fundamental than copyright, which not only makes possible the profitable manufacture and distribution of books, films, and other commodities but also, by endowing it with legal reality, helps to produce and affirm the very identity of the author as author.

Copyright is founded on the concept of the unique individual who creates something original and is entitled to reap a profit from those labors. Until recently, the dominant modes of aesthetic thinking have shared the romantic and individualistic assumptions inscribed in copyright. But these assumptions obscure important truths about the processes of cultural production. As Northrop Frye remarked many years ago, all literature is conventional, but in our day the conventionality of literature is “elaborately disguised by a law of copyright pretending that every work of art is an invention distinctive enough to be patented.”

This state of things makes it difficult to appraise a literature which includes Chaucer, much of whose poetry is translated or paraphrased from others; Shakespeare, whose plays sometimes follow their sources almost verbatim; and Milton, who asked for nothing better than to steal as much as possible out of the Bible. It is not only the inexperienced reader who looks for a residual originality in such works. Most of us tend to think of a poet’s real achievement as distinct from, or even contrasted with, the achievement present in what he stole, and we are thus apt to concentrate on peripheral rather than on central critical facts. For instance, the central greatness of Paradise Regained, as a poem, is not the greatness of the rhetorical decorations that Milton added to his source, but the greatness of the theme itself, which Milton passes on to the reader from his source.

“Poetry can only be made out of other poems; novels out of other novels,” Frye continues. “All this was much clearer before the assimilation of literature to private enterprise concealed so many of the facts of criticism” (96–97).

Frye’s comments about the disparity between “the facts of criticism” and the assumptions underlying copyright were made well before the poststructuralist transformation of the literary landscape. At the time Frye was writing, the dominant mode of critical thinking with its concern for the integrity of the individual work as an aesthetic artifact—the well-wrought urn of Cleanth Brooks’s famous title—was committed to the same mode of thinking, the same problematic, as the legal system with its concern for property rights. The characteristic form of interpretive criticism in this period, the “reading,” was typically a demonstration of the coherence of structure and meaning in a work. Likewise, textual study was typically committed to establishing what an author really wrote (as if there were always a single theoretically determinable literary object), and source study consisted of a quasi-judicial process in which the scholar was seen as determining the extent of one author’s indebtedness to another. But today the gap between copyright and literary thinking is striking. Copyright depends on drawing lines between works, on saying where one text ends and another begins. What much current literary thought emphasizes, however, is that texts permeate and enable one another, and so the notion of distinct boundaries between texts becomes difficult to sustain. Indeed, in what sense does the literary work exist objectively at all? Many critics reject any notion of the text as a stable, independent object, insisting on the centrality of the reader’s role in reproducing the text Many critics, too, reject any sense of the text as an object that exists apart from the culture that produced it or the succeeding cultures that have appropriated and, for their own purposes, reproduced it. Thus the concept of the historically transcendent masterpiece, the notion of the work that speaks to us directly, person to person, across the ages disappears, and along with it goes the notion of the creative genius, the autonomous author.

Discussions of copyright not infrequently regard intellectual property as an “ancient and eternal idea” (Prager 106) or “a natural need of the human mind” (Streibich 2). But copyright—the practice of securing marketable rights in texts that are treated as commodities—is a specifically modern institution, the creature of the printing press, the individualization of authorship in the late Middle Ages and early Renaissance, and the development of the advanced marketplace society in the seventeenth and eighteenth centuries. As Elizabeth Eisenstein remarks in The Printing Press as an Agent of Change, the “game of books and authors” depends on printing technology:

The wish to see one’s work in print (fixed forever with one’s name in card files and anthologies) is different from the desire to pen lines that could never get fixed in a permanent form, might be lost forever, altered by copying, or—if truly memorable—be carried by oral transmission and assigned ultimately to “anon.” Until it became possible to distinguish between composing a poem and reciting one, or writing a book and copying one; until books could be classified by something other than incipits; how could the modern game of books and authors be played? (121)

Before authors could become professionals, however, a certain level of production and consumption of printed materials had to be attained, and this, as Terry Belanger among others has emphasized, did not occur until the eighteenth century. Politically, socially, and economically, eighteenth-century Britain was the most advanced country in Europe, and it was there that the world’s first copyright statute was enacted in 1710. Accordingly, it is on eighteenth-century Britain that my book is centered; more specifically, it is centered on the long legal struggle known at the time as “the question of literary property.”

At the start of this struggle stands this first copyright law, the Statute of Anne. This act was, in part, a legislative extension of the long-standing regulatory practices of the Stationers’ Company, the ancient London guild of printers and booksellers. Yet there were two major innovations: the statute limited the term of protection (the guild copyrights were perpetual), and authors were legally recognized as possible proprietors of their works (previously only members of the guild could hold copyrights). In 1710, however, authors’ primary economic relations were still typically with patrons rather than with booksellers; it was not until 1754 that Samuel Johnson’s famous letter rejecting Lord Chesterfield’s belated gesture of patronage in connection with the Dictionary—a document that Alvin Kernan calls “the Magna Carta of the modern author” (105)—signaled that circumstances were changing and that professional authorship was becoming both economically feasible and socially acceptable. In the Statute of Anne, the author was established as a legally empowered figure in the marketplace well before professional authorship was realized in practice.

The “question of literary property” was essentially a commercial struggle, a battle between two groups of booksellers. At its heart was the limitation of the copyright term, an issue of little consequence to authors who normally sold their works outright to the booksellers. Did the statute determine the whole extent of protection, or did it merely supplement an underlying common-law right of property? The London booksellers, who dominated the English book trade since the early days of the Stationers’ Company, sought to maintain their position by establishing that, despite the statute, copyright was perpetual. Their rights, they argued, derived not from the statute but from the common-law rights of property transferred to them by authors. They were challenged by booksellers and printers of the provinces—and in particular by Scottish booksellers who were seeking an independent role for themselves as reprinters of popular titles—who denied that any protection existed beyond the term provided by the statute. Was there an author’s common-law right? This question had to be resolved in the courts. It was litigated without resolution in Tonson v. Collins (1760), and then again in Millar v. Taylor (1769) when the Court of King’s Bench, the highest common-law court in England, ruled that literary property was indeed a common-law right and that copyright was perpetual But then in the great case of Donaldson v. Becket (1774) the House of Lords reversed the King’s Bench decision and declared that copyright was limited in term.

Significantly, the parties in these cases were all booksellers, not authors; nevertheless, in the course of the litigation, the representation of the author as proprietor was elaborated and promulgated. This representation was dependent on the classical liberal discourse of property as represented, most famously, by John Locke’s notion of the origins of property in acts of appropriation from the general state of nature.¹ The key to Locke’s thought was the axiom that an individual’s “person” was his own property. From this it could be demonstrated that through labor an individual might convert the raw materials of nature into private property. The familiar passage from the Two Treatises of Government (1690) is worth quoting:

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (305–306)

The act of appropriation thus involved solely the individual in relation to nature. Property was not a social convention but a natural right that was prior to the social order. Indeed, the principal function of the social order was to protect individual property rights. Extended into the realm of literary production, the liberal theory of property produced the notion put forward by the London booksellers of a property founded on the author’s labor, one the author could sell to the bookseller. Though immaterial, this property was no less real and permanent, they argued, than any other kind of estate.

With its concerns for origins and first proprietors, the liberal discourse of property blended readily with the eighteenth-century discourse of original genius. As David Quint has shown, the notion of originality had roots in Renaissance literature, but the representation of originality as a central value in cultural production developed, as M. H. Abrams’ classic study reveals, in precisely the same period as the notion of the author’s property right. As late as 1711 Alexander Pope could still evoke the idea of the poet as the reproducer of traditional truths, speaking of “True Wit” as “Nature to Advantage drest, / What oft was Thought, but ne’er so well Exprest” (Poems 1:272–273). Seven years earlier, however, John Dennis made originality the basis for his praise of Milton (1:333–334), and in 1728 Edward Young was also insisting on its importance:

Above all, in this, as in every work of genius, somewhat of an original spirit should be at least attempted; otherwise the poet, whose character disclaims mediocrity, makes a secondary praise his ultimate ambition; which has something of a contradiction in it. Originals only have true life, and differ as much from the best imitations as men from the most animated pictures of them. (“On Lyric Poetry” 414)

By the 1770s the doctrine of originality was orthodox, and Samuel Johnson in his “Life of Milton” (1779) could state flatly, “The highest praise of genius is original invention” (Lives 1:194).

Thus the representation of the author as a creator who is entitled to profit from his intellectual labor came into being through a blending of literary and legal discourses in the context of the contest over perpetual copyright. The literary-property struggle generated a body of texts—parliamentary records, pamphlets, and legal reports—in which aesthetic and legal questions are often indistinguishable. What constitutes a literary work? How is a literary composition different from any other form of invention such as a clock or an orrery? What is the relationship between literature and ideas? The debate over these issues engaged many of the leading jurists of the day, including Lord Mansfield and William Blackstone, and in it one can observe the emergence of legal and literary problems that are still with us.

Let me emphasize that the focus of my discussion of authorship is not on subjectivity but on discourse. I am not concerned with the production of the author as a consciousness so much as with a representation of authorship based on notions of property, originality, and personality.² The production of this representation involved, among other things, the abstraction of the concept of literary property from the physical book and then the presentation of this new, immaterial property as no less fixed and certain than any other kind of property. “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property,” wrote Blackstone in a famous passage in his Commentaries, after which he proceeded to define property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (2:2). The paradigm of property for Blackstone, as for other eighteenth-century jurists, was land, and it was on the model of the landed estate that the concept of literary property was formulated.

The passage from Arthur Murphy’s Gray’s-Inn Journal that I use as an epigraph is a spectacular example of the attempt to represent literary property as analogous to real estate. Journalist, playwright, and member of the Johnson circle, Murphy was also a practicing lawyer involved as counsel in both Millar v. Taylor and Donaldson v. Becket. Here in a kind of dream vision, Murphy supposes himself transported to Mount Parnassus, the realm of the Muses, which he finds “portioned out by Apollo into different tenures, some of them conveyed to the person for ever, others for life, and many for a shorter duration.” Thus the ancients such as Homer and Virgil and the greatest of the moderns—specifically Shakespeare—are imagined as the owners of vast freehold estates, while others such as Dryden and Pope,^ translators of ancient texts, are imagined as holding the largest part of their possessions from the ancients by lease. Murph/s fantasy recasts the ubiquitous ancient-modern distinction into an anatomy of various kinds of land tenure. The production of poetry becomes the production of property.

The goal for Mansfield, Blackstone, and the other eighteenth-century lawyers engaged in the project of stabilizing the concept of literary property was to establish copyright as an absolute right of property, a freehold “grounded on labour and invention” (Blackstone 2:405). If an author created a work, then why should he not have “sole and despotic dominion” over it? But this effort, strenuously pressed though it was, never succeeded. In refusing to affirm perpetual copyright, whatever their reasons, the House of Lords bore witness to the radical instability of the concept of the autonomous author. After all, authors do not really create in any literal sense, but rather produce texts through complex processes of adaptation and transformation. Literary property is not fixed and certain like a piece of land. Indeed, not ev...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Contents
• 1 The Question of Literary Property
• 2 The Regime of Regulation
• 3 Making Copyright
• 4 The Author in Court
• 5 Battle of the Booksellers
• 6 Literary Property Determined
• 7 Property / Originality / Personality
• 8 Strange Changes
• Appendix A. Documents Related to Pope v. Curll
• Appendix B. Justice Nares’ Vote in Donaldson v. Becket
• Works Cited
• Index