Copyright and intellectual property issues are intricately woven into any written work, but the precise nature of this relationship has plagued authors, printers, and booksellers for centuries. What does it mean to own the products of our intellectual labors in our own time? And what was the meaning three centuries ago, when copyright laws were first put into place?
Jody Greene argues that while "owning" one's book is critical to the development of modern notions of authorship, studies of authorial property rights have in fact lost sight of the most critical valence of owning in early modern England: that is, owning up to or taking responsibility for one's work. Greene puts forth what she calls a "paranoid theory of copyright," under which literary property rights are a means of state regulation to assign responsibility for printed works, to identify one person who will step forward and claim the work in exchange for the right to reap the benefits of the literary marketplace. Blending research from legal, historical, and literary archives and drawing on the troubled authorial careers of figures such as Roger L'Estrange, Elizabeth Cellier, Daniel Defoe, John Gay, and Alexander Pope, The Trouble with Ownership looks to the literary culture of early modern England to reveal the intimate relationship between proprietary authorship and authorial liability.
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Jody Greene is Associate Professor of Literature and Women's Studies at the University of California, Santa Cruz.Excerpt. © Reprinted by permission. All rights reserved.:
A new historical understanding of print is needed. What will it look like? One immediately evident feature will be its regard for the labors of those actually involved in printing, publishing, and reading. Another will be its respect for their own representations of printing, embracing both its prospects and dangers. The dangers in particular will loom larger and more substantial than they have hitherto. Historians tend to disregard such perils as accidental. Early modern readers and writers knew otherwise.
—Adrian Johns, The Nature of the Book
The story of modern, proprietary authorship is by now a familiar one. In the English context, it goes something like this: the period from 1660 to 1800 saw an explosion in new opportunities for authors unparalleled in the history of authorship. Increases in literacy, the growth of cities, falling paper prices, the influx of international commercial capital, the end of prepublication censorship, and above all, the newfound willingness of authors to make their work public transformed British literary culture from a courtly côterie into a thriving marketplace. In addition to these expanding material, commercial, and cultural opportunities, authors for the first time found themselves endowed with rights. A notion of literary property emerged in this period that transformed the relation between author and work, in the words of Mark Rose, into one of "proprietorship." Authorial copyright, albeit in a most rudimentary fashion, was codified for the first time in the "Copyright Act" of 1710, in a move that established the author, in Rose's formulation, as "a legally empowered figure in the marketplace" (4).
The "Act for the Encouragement of Learning," as the Copyright Act was formally known, has been described by recent commentators as a kind of historical accident, "an entirely contingent means," in the words of David Saunders and Iain Hunter, "of regulating the unstable technical, economic, and cultural capacities created by a new apparatus of literary production." The Act, they write, was only tangentially designed to address the needs and rights of authors, and offered little more than a "makeshift solution" to a whole range of commercial and legal problems confronting the print trade and the authorities who took it upon themselves to oversee that trade (485). Nonetheless, the Act had profound effects on the practice of authorship, in addition to its effect on the organization of the trade as a whole. In the first place, the Act was important because it conceived of an author's primary—even aboriginal—relation to his or her work as a matter of ownership. Although the nature of the proprietary relationship is never spelled out in the Act, the phrase "Proprietor or Proprietors" stands in, after the opening lines, for the author, as well as for the printers, booksellers, and others whose interests might be covered under its provisions. Living authors were henceforth considered to have control over their property, in the form of an exclusive right to determine who was to copy the work. This right was alienable for a fixed term, no longer passing to the buyer in perpetuity. Authors were permitted to retain the right to control the reproduction of their works as long as they could afford to publish without the aid of a third party to put forward the printing costs and act as an intermediary with the book trade. Should the author find it necessary to sell or otherwise part with this copyright, however, he or she could assign it to anyone, not only, as had previously been the case, to a member of the Stationers' Guild. This single change in the law may have had the greatest effect on the organization of the book trade, as Lyman Ray Patterson remarks in Copyright in Historical Perspective. "The radical change in the statute," he writes, "was not that it gave authors the right to acquire a Copyright—a prerogative until then limited to members of the Stationers' Company—but that it gave that right to all persons." Henceforth the Company's monopoly on the trade in printed materials would be broken, although Company members continued to wield significant commercial weight throughout the eighteenth century. Moreover, although it remained the norm for most authors to sell their copyright, since most did not have access to the means of printing and publishing their own works, it was tempting for authors to try to eliminate the publisher's potentially lucrative role in this process, whether by keeping the copyright themselves or by attempting to reassign the right to a member of the trade willing to share the profits more equally than the traditional stationer. This, as later chapters show, was a favored strategy of that great authorial innovator, Alexander Pope, and also of his unlikely comrade-in-arms, John Gay.
Yet authors quickly found that the "Copyright Act" had consequences not only for authorial rights, but also for authorial liability. The lapse of the Licensing Act in 1695 had left something of a vacuum in the enforcement of press regulation. Although the licensing system had been only haphazardly effective in its final decades, and although the law regarding postpublication crimes such as libel and sedition remained unchanged, the absence of prepublication oversight made illicit, antigovernment publishing easier than it had been under the watchful eye of the licenser. In particular, it allowed for the rapid growth of periodical literature, including newspapers and weekly gazettes and reviews, the control of which preoccupied the government consistently from 1695 until the passage of a tax on periodicals in 1712. Above all, the disappearance of a centralized regulatory authority threatened to let forth a flood of wholly anonymous works—works with no information whatsoever on their title pages—as well as those sporting false imprints misidentifying the author, printer, bookseller, place of publication, and/or date of release. While all of these features could be falsified under the prior system, doing so was more difficult when a figure like Roger L'Estrange, with his own intimate knowledge of the ways of the trade, was at work surveying the press on a daily basis, as he was from 1663 until he was finally relieved of his duties in 1688.
Until the lapse of the Licensing Act, the stationers—with the help of government appointees such as L'Estrange—had been responsible for both the commercial and the ideological regulation of the book business, in a systematic tradeoff of rights and responsibilities that had been in effect since the charter of the Stationers' Company in 1557. After 1695, and especially after 1710, however, these two functions—call them "copyright" and "censorship," though neither term is satisfactory for covering the range of proprietary and regulatory interests described in this volume—were now no longer carried out by one centralized body, but were instead, at least according to almost all recent commentators, split off from each other. Rose goes so far as to argue that "the passage of the Act marked the divorce of copyright from censorship" (48). In so doing, he joins a long line of those who have seen in the relationship between these two regulatory functions an unhappy family romance. Rose himself describes the relationship between "censorship and trade regulation" after 1557 as a "marriage" (13). During the seventeenth century, he continues, they began to effect a "separation" that was only made complete in the divorce of 1710 (16). Fredrick Seaton Siebert takes the familial metaphor further by noting that the putative split left progeny, children of divorce, in the form of the generations of copyright legislation extending into the present:
Henceforth the protection of property rights in printed matter was divorced completely from any attempts at control of the content or quality of such printed matter. The sire of the Act of 8 Anne was the Printing Act of 1662; its progeny, the series of copyright acts in England and the U.S.
Siebert's reproductive formulation at least has the benefit of making it possible to postulate, through a kind of genetic analogy, the persistence of ideological regulation in intellectual property law. If the Licensing Act of 1662 truly spawned the Act of Anne, then some resemblance between the "sire" and his offspring should be visible, some trace of copyright's roots in censorship still left for historians to follow.
Historians, however, have been resistant to recognizing the persistence of ideological regulation in authorship's new proprietary formation. Without exception, in fact, scholars of the book have declined to acknowledge what all early modern commentators on the topic, whatever their political stripe, took for granted: that is, that "owning" one's book was synonymous with owning up to it, and that literary property was thus inseparable from regulation. In the words of Daniel Defoe, whose 1704 Essay on the Regulation of the Press makes an argument for authorial property rights that is grounded in assumptions about authorial liability, "'Twould be unaccountably severe to make a Man answerable for the Miscarriages of a thing which he shall not reap the Benefit of." Authors, Defoe insists, in a battle he would ultimately lose, should be required to set their names to their works, not only to put a stop to the "licentious Extravagance of Authors" (3) but also to record their "undoubted exclusive Right of Property" to their books (21). Even if compulsory authorial imprints remained undesirable to his contemporaries in the book trade, however, Defoe's recommendations concerning the compatibility of "censorship" and "copyright" would ultimately find their way into the Act of Anne, which continued the longstanding regulatory practice of balancing rights and responsibilities in matters related to the press.
To claim responsibility for a work after 1710 was not only to advance a proprietary claim, this study argues, but also to admit liability for its contents. Insofar as the Act of Anne constituted a method for keeping track of those responsible for literary works, it also put into effect a system of recording liability for them. Specifically, the Act made a provision for continued oversight of the press, in its recommendation that all works should be entered in the Stationers' Register prior to publication, despite the fact that the Stationers no longer held their traditional monopoly over the trade. Ostensibly, the Act of Anne was designed to put a stop to the piracy of literary works. In order to be able to combat such piracy, it was necessary to devise a means of recording who held copyright in a literary work, when that copyright was assigned, and for how long it was guaranteed. The drafters of the Act turned to the Stationers' Register to fulfill this recording function: "The Register was to be the official record of copy ownership," John Feather writes, "and entry was, apparently, to be required as a precondition of claiming and defending rights." Entry was not to be compulsory for all works, as it had been in the past; rather it was necessary for anyone who wanted to guard their proprietary interests against competitors. Entry, that is, seems to have been designed to protect rather than to regulate authors and other holders of copyright.
Yet almost by accident the Statute succeeded in installing a form of press regulation, even if it did not address itself directly to the question of crimes and punishments. Authors, as Pope's case amply demonstrates, considered a claim to copyright to be a sure means of tracing responsibility for a literary work, especially a literary work that might by its very nature be deemed dangerous or legally actionable. In keeping with the provisions of the Act, the authorities need only turn to the Register to find a record of the transfer of "the Title" to any book published after the Act went into effect. Included in this entry must be the "Consent of the Proprietor"—which is to say, in nearly all cases, of the author, for this transfer of title. The requirement of authorial consent, ostensibly designed to combat piracy for all those in the book trade and to protect the proprietary rights of authors, thus acted equally effectively as a means of controlling authors. Claiming and defending rights required authors to assume obligations as well; owning one's book could just as easily be construed as a confession of responsibility. The new benefits attached to authorship did not come without a cost, then, as authors found themselves subject to liabilities that made their profession as hazardous as it was newly lucrative.
The experience of individual authors who tried to use the Act of Anne to their own advantage—authors such as Pope and Gay—also suggests that whether or not the Act was intended to further the cause of press regulation, it succeeded in doing so. In fact, the provision concerning entry in the Register remedied the greatest single problem that had faced would-be controllers of the English press for more than fifty years: the difficulty of finding and holding liable the authors of printed works, rather than their more easily located printers and distributors. These members of the book trade leave material traces of their participation, while authors, especially careful ones, do not. As L'Estrange attested in his 1663 tract, Considerations and Proposals in Order to the Regulation of the Press, "Touching the <>Adviser, Author, Compiler, Writer, and Correcter, their Practices are hard to be Retriev'd." Or, in the words of Chief Justice Scroggs in the1680 trial of Henry Carr, accused of writing and publishing a libelous pamphlet, "It is hard to find the Author, it is not hard to find the Printer: But one Author found, is better than twenty Printers found." The Act of Anne made finding the author—retrieving his or her practices-not only possible, but virtually infallible. It did so not by inventing new means of tracking down authors, but instead by encouraging authors, in effect, to give themselves up voluntarily. By holding out the incentive of literary property and its attendant benefits, the Act of Anne succeeded—as 150 years of legislation and royal prerogative had not—in luring authors into owning their part in what was still, in 1710, a surprisingly risky business.
Authorship and the History of the Book
Readers familiar with the field of book history, as well as the history of authorship, will already have noted the degree to which the project of this book runs counter to current trends in both of these fields. Much of the work of the past two decades has been devoted to unseating the author from his place at the center of the history of the book—a liberal, masculinist, individualist history, these critiques contend, which, at least in its earliest formulations, failed to do justice both to the actual structure of the book trade in early modern England and to the contributions of the many individuals involved at all levels of that trade. In particular, as scholars like Paula McDowell and Marcus Nevitt have shown, a myopic attention to authors in the history of printed works has left the role of women in the early modern book and pamphlet trade almost entirely unwritten. At the same time, it has erased the contributions of working men and women to the early development of literate culture-a point most compellingly made by Adrian Johns in h...
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