Rose 1993

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Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard University Press, 1993.

The Question of Literary Property

modern authorship as "proprietorship; the author is conceived as the originator and therefor the owner of a special kind of commodity, the work" (1)

copyright: drawing lines between works, where one ends and another begins (3)

Lockean notion of property -- every man has property in his own person, and whatever he converts from state of nature -- mixed with emphasis on originality in c18 = "author as a creator who is entitled to profit from his intellectual labor" (6); landed estate (real property) forms basis for understanding literary property (7)

The Regime of Regulation

"True copyright is concerned with rights in texts as distinct from rights in material objects, and its historical emergence is related to printing technology." (9)

printing privileges -- "exclusive rights granted by the state to individuals for limited periods of time to reward them for services or to encourage them in useful activities" (10); originate in c15 Venice; appear in England in 1518; 1517: decree revoking all existing privileges in books -- had become too unmanageable (10)

in early mdoern England, 2 parallel systems:

patents: grants to individual authors for particular titles, but by mid-c16, mostly for classes of books (lawbooks, catechisms, etc.); base don royal prerogative
guild system of Stationers' Company; note "copy" in register (copy as original manuscript and right to make copies of it) (12); SC derived authority from crown with royal charter of 1557 granting the guild a monopoly on printing -- interested in censorship

text "as an action, not as a thing," for early modern period (13)

1641: abolition of Court of Star Chamber, authority behind licensing and SC's monopoly

1545, Venetian council of Ten decide all books had to be printed with written consent of authors (20-1)

"The insertion of the clause requiring the author's consent made it possible for an author to suppress questionable writings. What was at issue, then, was a matter related more to the definition of criminal liability than to economic interest. Merely to set libelous or seditious thoughts down on paper was not equivalent to making them public through the press." (22)

Making Copyright

1695, Licensing Act expires; "in the name of free trade [Commons] was seeking to end a monopolistic system of privilege and control with roots in an archaic concept of royal prerogative." (34)

Locke; Defoe; Addison -- authorial rights

authors as shepherds, tillers of soil, vessels of divine inspiration; paternity: author as begetter of the book-child

14-year limitation in Statue of Anne comes from mechanical invention patents; "when printing privileges first appeared, printing patents and grants for mechanical inventions were not different in kind. Now, 150 years later, traces of this original undifferentiation were inscribed in the statute" (45)

control of Stationers' Company limited by setting up alternative register for those books SC refused to put in its registers; author's rights introduced as way of breaking SC's monopoly (46-7)

The Author in Court

1735, booksellers petition to improve Statute of Anne to protect against piracy and foreign imports, use author's rights as an argument

  • bill died, but debated ended up shifting focus to author (56)
"The traditional stationers' term, 'copy', retained some feeling for coyp as a material object, the manuscript on which the printed edition was based. 'Copyright' suggests an attenuation of this feeling for the manuscript as the material basis of the property: an abstract right was being formulated, a legal claim based on a general idea of the author's creative labor. When the literary-property issue was looked at from the point of view of the laboring author, his right was readily warranted by the familiar paternity trope [...] But when the issue was looked at from the piotn of view of the work as a commodity, the right of the proprietor, who might or might not be the author, was warranted by the metaphor of land. The real-estate metaphor provided a comforting sense of weight and tangibility; however, at the same time that the discourse of literary property was acquiring metaphorical mass, it was moving away from its old foundation in the materiality of the manuscript as an object." (58)

Pope trying to keep Curll from publishing his letters; Hardwicke's decision split material from immaterial literary property

  • "Hardwicke's decision also implied an author who created in privacy a work he might either bring to market or not as he chose. And this representation of writing implied a reciprocal representation of reading as a private act of consumption, which was what reading had become by the middle of the eighteenth century." (66)

Battle of the Booksellers

connection between literary property and patents (73)

  • immovable property, like land
  • movable property
    • product of the hand (desks)
    • product of the mind (literature)

Warburton, three levels:

  • "purely material in which property was limited to the object itself,
  • the mixed form in which in addition to a property in the object there was also a patent for a limited term,
  • and the purely mental in which the property was neither confined nor limited" (73-4)
"Liberty and property: the freedom of the individual to employ his efforts to create property and the freedom to dispose of that property as he saw fit. These were the principles inscribed by reason in the very order of nature. How could they be denied in the case of the author?" (85)

ion Tonson v. Collins, there is "the simultaneous emergence in legal discourse of the proprietary author and the literary work. The two concepts are bound to each other. to assert one is to imply the other, and together, like the twin suns of a binary star locked in orbit, they define the center of the modern literary system." (91)

Literary Property Determined

Donaldson v. Becket; subjected copyright to statutory limitations

Lord Camden: real authors shouldn't write for money; are given the gift of genius, should use the gift to give back (104)

"The opponents of perpetual copyright were unable to produce an effective representation of authorship with which to counter the Lockean representation developed by the defenders of the author's right." (107)

Property / Originality / Personality

rise of Shakespeare cult

Strange Changes

"The story of copyright since Donaldson v. Becket, then, can be understood as an exploration of two central reifications, the 'author' and the 'work.' The narrative is one of steady expansion, of the enclosure of new territories, and this extension of dominion has occurred both at the level of the individual property -- ownership of the work now includes the right to prepare all kinds of derivative products -- and at the level of the basic commodity system as new technologies such as photography, cinema, and sound recording have been developed." (133)

in developing right to privacy, Warren and Brandeis looked to / used copyright as a precedent (140)

copyright as mediator between the public and private (140)