The Competitiveness of Nations

in a Global Knowledge-Based Economy

August 2002

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Trevor Ross

Copyright and the Invention of Tradition

Eighteenth-Century Studies

Volume 26, Issue 1

Autumn, 1992, 1-27.

Index

Introduction

Literature as Property/Property as Literature

Authors v. Readers

Copyright and Canonicity

 

Introduction

THE FIRST EVER COPYRIGHT ACT was passed in England on April 4th, 1710.  It set copyright terms of 21 years for old books, and 14 years for new works (with the possibility of an additional 14 years if the author survived the initial term). 1  However, the London booksellers, who had originally petitioned for the Act, ignored its statutory limits, and claimed instead that intellectual property, like real property, was recognized at common law and was therefore a right held in perpetuity.  Their claim did not go unchallenged: provincial booksellers, eager to publish their own editions of canonical works, repeatedly confronted the London monopoly on the notion of perpetual copyright, both in the courts and in scores of tracts and pamphlets.  The ensuing literary property debate, as it then came to be known, was not resolved until February 22nd, 1774, when, in the historic case of Donaldson v. Becket, the House of Lords rejected the arguments for perpetual copyright and upheld the statutory limits set out in the Act of 1710.  The debate was a momentous one, and it drew the attention of almost every prominent author of the century, from Defoe, Swift, and Addison, to Johnson, Boswell, Hume, Goldsmith, and Wordsworth.  As one contemporary account put it, “No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords, in the decision of which so many individuals were interested.” 2

1. On the history of the Act, see John Feather, “The Book Trade in Politics: The Making of the Copyright Act of 1710,” Publishing History 8 (1980): 19-44.  Feather sketches the evolution of English copyright in his recent monograph, A History of British Publishing (London: Routledge, 1988).

2. Edinburgh Advertiser, 1 March 1774, quoted in Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” Represen-[tations 23 (Summer 1988): 52.  I am indebted to Rose’s article for a number of suggestions, though my paper is meant as a corrective to the argument he presents.]

HHC: [bracketed] displayed on page 2 of original

1 Index

A number of recent critics have also shown interest in this literary property debate.  Martha Woodmansee, Alvin Kernan, Mark Rose and others have treated the debate as a kind of conceptual nursery for such critical doctrines as genius, originality, and the modern proprietary author. 3  While I do not disagree with these arguments, I believe they overlook certain implications of the debate whose consequences extend well beyond the ascendancy of these modern myths of creativity.  These implications are spelled out in most current laws of copyright.  To quote a 1974 decision of the U.S. Supreme Court, “The limited scope of the copyright holder’s statutory monopoly... reflects a balance of competing claims on the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music and the other arts.” 4  The assumption is central to modern thinking.  Its origins can be traced to the lawmakers of 1710, who gave their statute the prescient title of “An Act for the Encouragement of Learning.” By setting limits on the terms of copyright, the lawmakers of 1710 inadvertently created the public domain. 5  Never before in English history had it been possible to think that the nation’s canonical literature might belong to the people.  This, in essence, was what the literary property debate was all about: to whom does literature belong? and what function does it serve in society beyond financial profit for authors and booksellers?  We are

3. Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” ECS 17 (1984): 425-448; Alvin Kernan, Printing Technology, Letters & Samuel Johnson (Princeton: Princeton Univ Press, 1987), pp. 97-102; Rose, n. 2 above. See also William J. Howard, “Literature in the Law Courts, 1770-1800,” in Editing Eighteenth-Century Texts, ed. D. I. B. Smith (Toronto: Univ. of Toronto Press, 1968), pp. 78-91.

4. Twentieth Century Music Corp. v. Aiken. 422 U.S. 151, 156 (1974), quoted in Howard B. Abrams, “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,” Wayne Law Review 29 (1983) 1120 n. 3.

5. The limited terms of copyright in the Act of 1710 were evidently last-minute amendments to save the original bill, which had received rough treatment in Parliament from Whigs and moderate Tories suspicious of both licensers and powerful London booksellers.  Granting authors ownership in their writings was, as David Saunders notes, “convenient rather than central to the anti-monopolistic strategy of the majority in Parliament,” in “Copyright, Obscenity and Literary History,” ELH 57 (1990): 436.

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still contending over these issues, though it is, by now, a little difficult to imagine a situation where the right to publish the works of Shakespeare or Milton was vested in a single publisher.  That situation might have been today’s reality, if it were not for the defeat of perpetual copyright in 1774.  In the words of one pamphleteer, “the Works of Shakespeare, of Addison, Pope, Swift, Gay, and many other excellent Authors of the present Century, are, by this Reversal, declared to be the Property of any Person.” 6  The reversal in effect institutionalized the belief that the formation of a literary culture takes precedence over the pecuniary rights of individual authors and booksellers.

In what follows, I have sought to analyze the reasonings behind the 1774 decision, and to suggest some of its ramifications for English literature.  In my first section, I discuss how the idea of intellectual “property” changed over the course of the debate; more specifically, I suggest that the older, static conception of literary property as the fruit of an author’s intellectual labour is modified by later, liberal emphases on how property acquires value through exchange and circulation.  In my second section, I argue that, by upholding a restricted term of copyright on behalf of “the public interest,” the 1774 decision ultimately subordinated the concerns of authors to the needs of readers; I thus oppose Romantic theories of originality and genius to a “readers’ aesthetics” newly emergent in the later eighteenth century.  In my final section, I relate the defeat of perpetual copyright to a growing awareness of the status of English literature as a “tradition,” one whose artistic vitality, it was felt at the time, could only be maintained by restricting the material privileges of authors.  In essence, the 1774 decision, I argue, was legal recognition that canonical texts are as traditional as they are unique, and that therefore, in Richard Posner’s words, “the more extensive copyright protection is, the more inhibited is the literary imagination.” 7

 Index

Literature as Property/Property as Literature

The idea of legal protection for printed works greatly antedates the

6. “Preface,” The Cases of the Appellants and Respondents in the Cause of Literary Property, Before the House of Lords (London, 1774), rptd. in The Literary Property Debate: Six Tracts, 1764-1774, ed. Stephen Parks (New York: Garland, 1975), sig. a.

7. Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard Univ. Press, 1988), p. 348.

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Act of 1710, as do notions of authorial rights.  However, private copyright as such was not recognized in the sixteenth and seventeenth centuries, except for a few rare instances when an author received an exclusive Royal license to print his own work.  Copyright before 1710 was largely regulated by the domestic monopoly of the Stationers’ Company; the Crown exercised its prerogative over printing only in special cases, such as the publication of bibles, or on those politically charged occasions when the Crown sought to censor the press by controlling the supply of new books. 8  The notion of an author’s copyright, then, never seems to have been actually declared as a right at common law before the eighteenth century; this, despite the customary assumption that one ought to be entitled to the fruits of one’s own labour, be it physical or intellectual, and ought therefore to be legally protected against the unauthorized appropriation of those fruits.

This ambiguity in the law is the basis for much of the literary property debate.  The defenders of perpetual copyright, including for a time Samuel Johnson, champion of the literary profession, could reasonably claim that authors enjoyed a natural right in their works: “There seems,” Johnson argued, “to be in authours a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual.” 9  Yet equally reasonably the British judges who surveyed the legal history could conclude that copyright came into legal existence only after the coming of print and thus had no “immemorial” foundation at common law.  As Lord Justice Clerk of the Scottish Court remarked in his dismissal of arguments for a perpetual copyright, “our statutes, the Roman law, the ancient customs of the kingdom, the doctrines of our lawyers, and the decisions of this court; all these have been

8. Copyright in the early modern era, Ian Parsons has noted, often served as “an indirect form of censorship.  Indeed, although it would be a gross exaggeration to claim that copyright protection grew out of literary censorship, it is a fact that historically the two notions developed side by side, having a common origin in the growth of printing, and that ordinances and Acts of Parliament designed to protect society against abuses of the press frequently achieved, as a concomitant, the protection of authors and publishers against infringement of their rights,” in “Copyright and Society,” Essays in the History of Publishing, ed. Asa Briggs (London: Longman, 1974), p. 32.

9. James Boswell, The Life of Samuel Johnson, ed. George Birkbeck Hill and L. F. Powell (Oxford: Oxford Univ. Press, 1934), 2:259.

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investigated, and no trace or vestige is to be found of this idea of a copy-right.” 10

The Act of 1710 intensified this ambiguity by proposing two conflicting accounts of authorial rights.  On the one hand, by both defining those rights and limiting the period of legal protection, the Act appeared to be making copyright purely a statute-dependent privilege with no foundation in common law.  On the other hand, by referring to authors as “proprietors” in their works, the Act seemed to be “declarative” of the common law; that is to say, the Act seemed to be clarifying rather than superseding the common law, providing it with the legal mechanism for enforcing penalties against piracy.  In this way, the growth of printing, so the argument went, may have necessitated the statuatory declaration of copyright in the Act of 1710, but the privilege itself was founded on a customary principle of property rights that had long predated the new technology.  As any lawyer will tell you, lawmakers do not protect something because it is property, but rather call something “property” in order to protect it.  Indeed, it was routinely acknowledged during the eighteenth century that the usage of the term “property” in the Act of 1710 was entirely figurative.  But it was, and still is, a trope with considerable force in the law, which may explain why most justices before 1774 ignored the statutory limits of the Act, preferring instead to support the notion of an author’s perpetual copyright.  That almost all the many legal contests over perpetual copyright involved booksellers and not authors (who invariably sold their rights to the trade prior to publication) did not seem to matter.  Even in the case of older works such as Shakespeare’s, the natural and perpetual rights of the author continued to be proclaimed, in spite of the apparent fact that Tonson’s “ownership” of Shakespeare was based in a de facto occupancy and not in a right assigned by the playwright’s estate.

The legal authority of the term “property” meant that much of the debate centered on the nature of intellectual property, and on the question of whether the ideas, sentiments, and even the style of a given work could be awarded the same legal protection as that assigned to an estate or to a patented invention.  The London booksell-

10. Lord Justice Clerk, as reported in The Decision of the Court of Session, in Parks, ed., Sx Tracts, 1764-1774, p.16

5 Index

ers, with the support of Blackstone, among others, argued that the identity and ownership of a text were secured in the author, no matter how often the text was reproduced nor how diverse the contexts into which it was introduced.  In Blackstone’s words, “the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and, whatever method [the author] takes of conveying that composition to the ear or eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey, or transfer it, without [the author’s] consent.”  From such legal definitions of intellectual property there arguably develops the later idealist credos that the truth and value of a text are independent of its context, and that the literary text, in particular, is an autonomous if incorporeal creation possessed of an organic integrity.  “After a literary work is produced or composed,” writes one advocate of perpetual copyright, “it may subsist in various forms: it may remain lodged in the author’s memory; it may be recited viva vocÚ; it may be written, or it may be printed: but in all these forms it is still the same work; and these are only incidental circumstances which do not at all change its nature, or affect its identity.  Literary property …. is indeed a kind of property invisible and untangible; but it is not on that account the less real.” 12

The opponents of perpetual copyright countered by saying that something “invisible and untangible” could be, at best, considered only “quasi property.”  Property and corporality, argued one Scottish bookseller, “are relative Terms which cannot be disjoined, and Property, in a strict Sense, can no more be conceived without a corpus, than a Parent can be conceived without a Child.” 13  Yet the argument

11. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1765-69), 2:406.

12. William Enfield, Observations on Literary Property (London, 1774), rptd. in The Literary Property Debate: Eight Tracts, 1774-1775, ed. Stephen Parks (New York: Garland, 1974), p. 11.

13. Henry Home, Lord Kames, Remarkable Decisions of the Court of Session &c. (Edinburgh, 1766), part. rptd. in English Publishing, the Struggle for Copyright, and the Freedom of the Press: Thirteen Tracts, 1666-1774, ed. Stephen Parks (New York: Garland, 1975), pp. 157-58.

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seemed weak and unconvincing, for even the most ardent opponents of perpetual copyright were reluctant to deny an author’s natural rights in his or her unpublished writings.  The key therefore for the supporters of the provincial trade was to demonstrate how, in the terms of the Act of 1710, publication transformed private property existing at common law into public domain regulated only by statute.  The provincial booksellers were willing to grant authors the right of first publication and of financial reward for their labour; but, they added, once a work was published, the owner of its copyright, under the Act of 1710, could enjoy only temporary legal protection from piracy.  These critics maintained that the ideas in a text, once disseminated in print, could not but be held in common.  The most memorable articulation of this position was that of Justice Yates, who cast the only dissension in a rare split vote of the Court of King’s Bench, in the landmark case of Millar v. Taylor (1769).  Publication, Yates argued, was a gift of ideas to the public: “the very matter and contents of… books are by the author’s publication of them, irrevocably given to the public; they become common; all the sentiments contained therein, rendered universally common: and when the sentiments are made common by the author’s own act, every use of those sentiments must be equally common.  To talk of restraining this gift, by any mental reservation of the author, or any bargain he may make with his bookseller, seems to me quite chimerical.”  Ideas in print, according to Yates, could not be owned or recalled by the author; once a work was published, its contents became automatically part of every reader’s body of learning.  Upon publication, Yates insisted, “ideas are free.” 14  (Though the other three judges on the King’s Bench, including Lord Mansfield, decided in favour of a perpetual copyright at common law, Yates’s lengthy judgment, along with a number of decisions by the Scottish Courts, proved highly influential when the ruling of Millar v. Taylor was later reversed by the Lords in 1774, in the case of Donaldson v. Becket.  It is also worth noting that, as both these cases involved disputes over the ownership of Thomson’s Seasons, the judges and Lords who considered perpetual copyright were concerned primarily with the value and social function of literary works.)

14. Justice Joseph Yates, in Millar vs Taylor, 20 April 1769, in English Reports 98: 234 242.

7 Index

However eloquent these pleas for and against literary property, their underlying assumptions about “property” were slowly becoming obsolete in the latter half of the eighteenth century.  John Pocock has shown how, during this period, “property moved from being the object of ownership and right to being the subject of production and exchange.”  Property, Pocock explains, was no longer defined within an unchanging structure of norms but was understood to exist within a historical process and (later, with Marx) within a structure of productive relations.  To put it more crudely, property was beginning to be perceived less as a credential of power within a static hierarchy founded on landed interests, and more as something that acquired value through its circulation within a dynamic market economy.  And, as Pocock goes on to suggest, this transformation in the perception of property altered the prevalent notions of the human personality: “we are contrasting,” he says, “a conception of property which stresses possession and civic virtue with one which stresses exchange and the civilisation of the passions.”  With the emergence of this commercial ideology, personality was no longer seen as the function of civic discipline but as the product of experience and convention, circulation in society, and the refinement of manners.  By extension, property and its ceaseless exchange gradually assumed the didactic and ideological functions formerly ascribed to literary works: “Commerce, and the complexity of exchange which it generates, teaches both rulers and subjects the conventions according to which government must be conducted.” 15   In effect, literature was being proclaimed as intellectual private property at the very moment when the circulation of property was becoming intellectual capital.

This change in the perception of property is reflected at various levels of the literary property debate.  One question that was hotly debated was whether perpetual copyright could be considered a monopoly.  The London booksellers maintained that theirs was not a monopoly because, first, a monopoly was strictly speaking a grant of the Crown; and second, perpetual copyright was not a monopoly because it did not restrict the public’s access to any work that had previously been widely available.  Thus the London booksellers were

15. J.G.A. Pocock, Virtue, Commerce and History (Cambridge, Cambridge Univ. Press 1985), pp. 115, 119, 121.

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relying on the older view of property as an object of rights and privileges.  Their opponents countered by asserting that copyright was effectively a monopoly, one that restricted the rights of readers.  The retention of perpetual copyright, in Yates’s version, “would thus exclude all the rest of mankind from enjoying their natural and social rights.” 16  This opinion equally presumed an older view of property, however, and had therefore to be later supplemented by the essentially Adamite claim that a copyright monopoly inhibited the growth of the book trade and of the British economy generally.  Worse, any monopoly, according to these later critics, that restricted the full circulation of property ultimately threatened England’s liberty and the proper ideological development of its citizenry: “In every kind of commerce, and in every art, there ought to be a competition.  Without this, industry will not prosper; and any monopoly or restraint must nourish tyrants, to oppress the country, and to annihilate ingenuity.”  Perpetual copyright, so the argument went, enriches “a few booksellers, at the expence of the whole nation.” 17  The London booksellers strenuously denied these charges, though their case was considerably weakened by the discovery that they had actively conspired to undermine the provincial trade’s efforts to expand its market. 18

At a more profound level, the change in the way property was perceived altered the way the value of literature was defined.  If the commerce of property was gradually assuming the didactic functions of literature, then literature’s own functions had to be reconceived, in accordance with the new liberal emphases on circulation and exchange.  In place of the old pragmatic claim that literature teaches as it delights, there emerges the more idealistic sense that literature operates within a vast complex of human activities, and, if properly disseminated, contributes to the formation of a national culture. 19

16. Yates, English Reports 98:232.

17. Sir Ilay Campbell, Information for Alexander Donaldson and John Wood, Book­sellers in Edinburgh, &c. (Edinburgh, 1773), in Parks, ed., Six Tracts, 1764-1774, pp. 16-7.

18. See the evidence collected by the Scottish bookseller Alexander Donaldson in Some Thoughts on the State of Literary Properly (London, 1764), in Parks, ed., Six Tracts, 1764-1 774.

19. Raymond Williams was the first to trace the origins of the modern idea of “culture” to the same historical conditions that spawned industrialization, democratic politics, and market economics, in Culture and Society 1780-1950 (London: Chatto & Windus, 1958).

9 Index

The distinction may merely be an ideological one, where an older perception of literature, one that openly stressed literature’s utility as an instrument of pleasure or of moral and political instruction, is rendered less patrician and agonistic with the suggestion that literary works are, or ought to be, phenomena broadly and freely shared among all members of a community.  Yet however obscurantist this distinction may seem to us now, the perceptual shift it identifies is significant since it means that the value of a literary work is measured less by its direct and immediate effects on a reader than by how widely and profoundly it is accepted into the fabric of a culture.  A literary work, much like property, had to circulate within society for it to become valuable: it had be read over multiple and divergent generations of readers before it could be treated as a “repository” of values.  Within this perceptual shift can thus be located the legal and economic origins of an important modern concept, the “circulation of ideas.”

This perceptual shift operated decisively in the copyright debate.  The older, didacticist view was that of Lord Camden at the decision of 1774: “Why did we enter into Society at all,” Camden asks, “but to enlighten one another’s Minds, and improve our Faculties, for the common Welfare of the Species?”  The assumption here is that society provides us with a defining structure, and with notions of virtue and discipline; such enabling models, Camden asserts, preserve us from the chaos to which our “irregular and uncertain and various” temperaments are naturally prone. 20  This pragmatic view is also expressed in the earlier decision of Mr. Justice Yates: “The principal end,” Yates suggests, “for which the first institution of property was established, was the peace of mankind; which could not exist in a promiscuous scramble…  Mankind must have a knowledge of what is their duty, in order to observe it by abstaining from every violation of it.” 21  By extension, the value of literature is itself determined within this pre-existing structure of norms.  In Camden’s words,

20. Lord Camden, as reported in The Cases of the Appellants and Respondents, in Parks, ed., Six Tracts, 1764-1774, pp. 52-54.  I quote this pamphlet account of the 1774 decision as it provides a fuller and apparently more accurate record of the speeches than does the later standard account.  See Rose, “The Author as Proprietor,” pp. 81- 82 n. 55.

21. Yates, English Reports 98:235.

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authors “are intrusted by Providence with the delegated Power of imparting to their Fellow creatures that Instruction which Heaven meant for universal Benefit.”  It follows that Camden, and those who shared his patrician and gentlemanly valorization of literature, resisted the commodification of writing that is explicit in the term “intellectual property,” and rejected in principle the idea of copyright: “It was not for Gain, that Bacon, Newton, Milton, Locke, instructed and delighted the World; it would be unworthy such Men to traffic with a dirty Bookseller for so much [as] a Sheet of Letter-press.” 22

The newer view of literature’s function was that of Lord Kames, at a 1773 decision of the Scottish Court of Session.  The act of 1710, Kames argues, “excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement.  And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public.”  Endorsing perpetual copyright will, he adds, “unavoidably raise the price of good books beyond the reach of ordinary readers.  They will be sold like so many valuable pictures.  The sale will be confined to a few learned men who have money to spare, and to a few rich men who buy out of vanity as they buy a diamond or a fine coat.”  Kames is not simply objecting to canon-making by moneyed elites; he is making clear how the value of literature is determined within a dynamic scheme of productive relations.  Literature continues to serve instruction and amusement, but its true benefits are to be understood in quantitative terms, in the multiplicity of books and in their wide diffusion and “commerce” among ordinary readers.  The commodification of literary works is, by this logic, something to be welcomed rather than feared.  Hence the real value of literature is apt to be forgotten in a society that, through its economic monopolies,

22. Lord Camden, as reported in The Cases of the Appellants and Respondents, in Parks, ed., Six Tracts, 1764-1774, p. 54.  Milton, contrary to what Camden suggests, seems to have endorsed the establishment of an author’s copyright.  See Harry Ransom, The First Copyright Statute: An Essay on “An Act for the Encouragement of Learning,” 1710 (Austin: Univ. of Texas Press, 1956), pp. 7 1-74.  Abbe Blum expresses reservations about Ransom’s claim in “The Author’s Authority: Aeropagitica and the Labour of Licensing,” in Remembering Milton. Essays on the Texts and Traditions, ed. Mary Nyquist and Margaret W. Ferguson (New York: Methuen, 1988), pp. 74-96.

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denies reading to all but its richest members.  In time, the concentration of wealth and ownership in a select few would drain the life out of the book trade: “A monopoly,” Kames concludes, “would put a final end to the commerce of books in a few generations.” 23

Kames prefaces his argument for the circulation of ideas with a sociology of reading, one that does not presuppose the essential volatility of human nature.  Instead of order, virtue and self-possession, we read in Kames’s argument the newer codes of refinement and progress, of individual identities being formed by social relations and the exchange of material and cultural goods:

Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection?  At the same time, he was made an imitative being, in order to follow what he sees done by others.  But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them.  24

Just as Kames is substituting the modern theme of “the public interest” for the older dogma of “duty” and “Providence” staunchly defended by Yates and Camden, so is he also rejecting the latter’s didactic theory of literature.  For Kames, the theory is reductive in that it locates literary value in each work’s apparent and immediate ability to instruct the reader on his or her fixed role within society.  In Kames’s view, socialization and progress are extended processes that involve the “general use” of many literary productions; the ultimate value of literature is an aggregate measure.  Reading yields not a pot of sweetness and light, but a fund of acculturation.  Thus the law, according to Kames, must recognize that the unrestricted reproduction and cultural transmission of literary property ensures the upward intellectual and economic mobility of society as a whole.

No doubt the concept of “property” held as much legal authority for Kames as it did for Camden and Yates, but for Kames the value of property, including literary property, was to be measured within

23. Henry Home, Lord Kames, as reported in James Boswell, ed., The Decision of the Court of Session, upon the Question of Literary Property &c. (Edinburgh, 1774), in Parks, ed., Six Tracts, 1764-1 774, pp. 19-20.

24. Lord Kames, as reported in The Decision of the Court of Session, in Parks, ed., Six Tracts, 1764-1 774, p. 19.

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a system of progressive exchange and “general use,” and not according to a rigid hierarchy dominated by landed or moneyed interests.  This, in essence, is the argument that enabled the provincial trade to win its case.  “The Common Law,” argued the appellants before the English Lords, “has ever regarded public Utility, the Mother of Justice and of Equity.  Public Utility requires that the Productions of the Mind should be diffused as wide as possible, and therefore the Common Law could not, upon any Principles consistent with itself, abridge the Right of multiplying Copies.” 25  The ambiguity at the heart of the Act of 1710 is not so much resolved as its assumptions updated: intellectual property may remain a right at common law but “public utility” dictates that property must, through its commerce, serve to enrich society as a whole.

 Index

Authors v. Readers

The London booksellers responded to such sociological arguments by appealing to conservative fears about the Grub Street menace.  Retrenching perpetual copyright, they typically declared, would undermine the integrity of the canon by opening the floodgates to the wide diffusion of trash.  Under the Act of 1710, argues one advocate of perpetual copyright, “the most valuable writers, whose genius entitles them to immortality, or whose unwearied labours in philosophical investigation have given birth to works which will afford instruction and improvement to distant ages, are classed with the Ephemera of Literature who are born and die in a day.” 26  It is possible to read in such statements an attempt to relocate the source of evaluative, elite authority in the original genius of the author.  This, as I suggested earlier, is the neohistoricist argument that Rose, Kernan and Woodmansee put forward.  Woodmansee, in particular, sees in Edward Young’s epochal Conjectures on Original Composition (1759) a direct correlation between the concern for literary property and the emergence of “originality” as a term of critical approbation.  Though not a direct contribution to the copyright debate, Young’s Conjectures are addressed to a London bookseller, Samuel Richardson, who was often plagued by pirates.  Yet what interests me about

25 Alexander Donaldson and John Donaldson, as reported in The Cases of the Appellants and Respondents, in Parks, ed., Six Tracts, 1764-1774, p. 6.

26. Endfield, Observations, in Parks, ed., Eight Tracts, 1774-1775, p. 45.

13 Index

the passage Woodmansee cites in the Conjectures is less the connection between originality and property than the metaphoric slurs on the exchange of intellectual property:

Thyself so reverence as to prefer the native growth of thy own mind to the richest import from abroad; such borrowed riches make us poor.  The man who thus reverences himself, will soon find the world’s reverence to follow his own.  His works will stand distinguished; his the sole Property of them; which Property alone can confer the noble title of an Author; that is, of one who (to speak accurately) thinks, and composes; while other invaders of the Press, how voluminous, and learned soever, (with due respect be it spoken) only read, and write. 27

Between unequal partners, Young seems to be saying, there can never be free trade.  The circulation of ideas ultimately impoverishes literature because it fails to take into account the qualitative differences among works.  In effect Young is reconstituting within the literary system the old normative hierarchy that had formerly sanctioned ideological assumptions about property.

Rose baldly asserts that the London trade virtually created “the modern proprietary author, constructing him as a weapon in their struggle with the booksellers of the provinces.” 28  Yet the struggle implicated more than the book trade.  As is apparent from Young’s anti-trade polemic, copyright set author against author in a quest for originality, a theme I address in my final section.  The one repercussion of the struggle I wish to outline here is the one that set author against reader.  If authors and booksellers were the apparent losers in the decision of 1774, the clear winners were English readers, who could now look forward to multiple cheap editions of canonical works.  And if the modern proprietary author, possessed of original genius, was the most potent weapon in the defense of perpetual copyright, then the apotheosis of this poet-genius ultimately meant that the interests of authorship were to be opposed to the public interest.  Young, in the above passage, hints at such an opposition when he elevates thinking and composing above mere reading and writing.  Young is discriminating between classes of authors, but

27. Edward Young, Conjectures on Original Composition In a Letter to the Author of Sir Charles Grandison (London, 1759), pp. 53-54.  See Woodmansee, “The Genius and the Copyright,” pp. 430-31.

28. Rose, “The Author as Proprietor,” pp. 56.

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his trivialization of reading as itself a mere “borrowing” of riches illustrates the degree to which the copyright debate alienated authors from their audience.

Arguably, Young is not so much scorning the act of reading as he is circumscribing the utility of authorship in his society.  Composition represents for him a willful retirement from civic responsibilities, “not only a noble Amusement, but a sweet Refuge… While we bustle thro’ the thronged Walks of public Life, it gives us a respite, at least, from Care; a pleasing Pause of refreshing Recollection.” 29  Such sentiments may seen unremarkable to us now, but they bespeak an important change in critical attitudes toward the social function of literature.  For most authors prior to the mid-eighteenth century, literary works were produced for pragmatic ends: for specific occasions or functions, as moral or political instruction, for career advancement and the immortalizing of patrons, and, above all, in the service of civil society.  Composition, likewise, was taught not so much to encourage creativity as to provide students with the oratorical and dialectical skills necessary for public decision-making.  No such practical considerations enter into Young’s idealizing of originality: his unique genius writes only for himself, rejecting even the lofty didactic aims endorsed by Camden and Yates.

Young is writing at a time when a centuries-old rhetorical culture, which had sustained such pragmatic aims for literature, is being displaced by new disciplines and philosophies of the mind. 30  One notable consequence of this displacement is an increased fascination with the subjective experience of reading, with the cognitive and imaginative processes required to understand and assess written works.  Pamphlets and monographs on the art of reading begin to appear for the first time, 31 and reading for comprehension and appreciation becomes a subject of pedagogical concern.  In criticism, practical considerations about the utility of literature and the norms for writing are being eclipsed by elaborate discourses on the faculties

29 Young, Conjectures, pp. 5-6.

30. Walter Ong is perhaps the best known theorist and historian of this displacement.  See, in particular, his Rhetoric, Romance, and Technology (Ithaca: Cornell Univ. Press, 1971).

31. An example is Thomas Sheridan’s Lectures on the Art of Reading (2nd ed., 1781), whose declared aim is to bring “this art to perfection” (p. 4).

15 Index

of taste and judgment. 32  The upshot of all of this is that the value of literature is being redefined to reflect a change from production to consumption, writing to reading, rhetoric to reception. 33  Or, in the terms of the copyright debate, literary works, once vehicles for ideological instruction and hegemonic control, become instead cultural items to be broadly circulated in society.  Emancipated from the forceful codes of rhetoric, readers may purchase books to suit their taste, pleasure, and self-image.  And with this commodification of writing, canons become something for a consuming public to make.  Johnson’s yielding to the authority of the “common reader” is for Hans Robert Jauss an affirmation of the public’s “claim to self-determination,” and a sign of a newly emergent “readers’ aesthetics. 34  It is therefore interesting to note that the figure of the common reader first appears in tracts calling for the defeat of perpetual copyright and the wide dissemination of canonical texts in inexpensive editions. 35  The decision of the House of Lords was both a real victory for common readers and a symbolic moment in English literary history, a recognition of literature’s increasing commodification and valorization in accordance with the desires of a consuming public.  On February 22nd, 1774, literature in its modern sense began.

Young’s poet-genius for whom writing provides solace from the drudgery of public life is a response to this emergent readers’ aesthetics.  Young stoically celebrates a situation in which his profession is being denied its former centrality in the moral and political economy of civil society.  In a culture of taste and consumption, it is production

32. Hugh Blair, introducing his hugely influential Lectures on Rhetoric and Belles Lettres (2 vols., 1783), claims his guidebook will appeal to both interests: “some, by the profession to which they addict themselves,… may have the view of being employed in composition, or in public speaking.  Others, without any prospect of this kind, may wish only to improve their taste with respect to writing and discourse, and to acquire principles which will enable them to judge for themselves in that part of literature called the Belles Lettres” (1:4-5).

33. This change, I have argued elsewhere, accounts for the supersession of “poetry” by “literature” as the collective noun for all imaginative or eloquent writings: poetry is composed and spoken, literature read and studied. See my entry for “Literature,” in Dictionary of Contemporary Criticism and Critical Terms, ed. Irene Makaryk (Toronto: Univ. of Toronto Press, 1992), forthcoming.

34. Hans Robert Jauss, “The Theory of Reception: A Retrospective of its Unrecognized History,” Literary Theory Today, ed. Peter Collier and Helga Geyer-Ryan (Ithaca: Cornell Univ Press, 1990), p. 62.

35. See, for example, A Letter to the Society of Booksellers, &c. (London, 1738), rptd. in Parks, ed., The Rights of Authors (Two Tracts, 1732-1738) and Freedom of the Press (Four Tracts, 1740-1764) (New York: Garland, 1975), pp. 2-3.

16

which is inevitably trivialized, being relegated finally to pain and compulsion. 36  No longer a prestigious purveyor of ideological norms, his works degraded by commodification, the alienated author finds “spiritual compensation” in the myths of originality, transcendent genius, and aesthetic autonomy.  Such mystification pervades the arguments on behalf of permanent authorial rights: the “Flight” of genius, declared Lord Lyttleton at the decision of 1774, “should not be impeded.  To damp the Wing of Genius is, in my mind, highly impolitic, highly reprehensible, nay, somewhat criminal.” 37

The most famous formulation of a theory of genius as compulsion is of course Wordsworth’s claim that creativity begins with the “spontaneous overflow of powerful feelings.”  Wordsworth, like Young, used literary theory to compensate for what he felt were distressing material conditions for authorship.  The reversal of 1774, in particular, was a source of much resentment for Wordsworth, who, throughout his career, petitioned for the re-institution of perpetual copyright, which he considered a right at common law.  His arguments on behalf of permanent authorial rights tended, however, to repeat the usual mystificatory claims that only a monopoly on posterity could adequately reward immortal genius.  “The law, as it now stands,” he wrote in 1808, “merely consults the interest of the useful drudges of Literature, or of flimsy and shallow writers, whose works are upon a level with the taste and knowledge of the age; while men of real power, who go before their age, are deprived of all hope of their families being benefited by their exertions.” 38  Yet here, and in

36. This process is the subject of Howard Caygill’s brilliant study, Art of Judgement (Oxford: Basil Blackwell, 1989), esp. pp. 98-102.  Terry Eagleton’s redaction of Caygill’s thesis is worth quoting: “In a notable historical irony, the birth of aesthetics as an intellectual discourse coincides with the period when cultural production is beginning to suffer the miseries and indignities of commodification.  The peculiarity of the aesthetic is in part spiritual compensation for this degradation: it is just when the artist is becoming debased to a petty commodity producer that he or she will lay claim to transcendent genius.”  The doctrine of aesthetic autonomy, Eagleton adds, is similarly a compensatory move that “seizes upon the very functionlessness of artistic practice and transforms it to a vision of the highest good,” in The Ideology of the Aesthetic (Oxford: Basil Blackwell, 1990), pp. 64-65.

37. Lord Lyttleton, as reported in The Cases of the Appellants and Respondents, in Parks, Six Tracts, 1764-1774, p. 56.

38. The Letters of William and Dorothy Wordsworth: The Middle Years, ed. Ernest De Selincourt (Oxford: Oxford Univ. Press, 1937), 1:242.  Susan Eilenberg discusses Wordsworth’s lifelong efforts to extend the terms of copyright in “Mortal Pages: Wordsworth and the Reform of Copyright,” ELH 56 (1989): 351-374.

17 Index

his better-known remark that the great writer creates “the taste by which he is to be enjoyed,” there are the makings of a response to the culture of consumption, a reassertion of the primacy of literary production in the acculturation of readers.  In the “Essay, Supplementary to the Preface” (1815), Wordsworth contends that true imaginative sympathy with the work of genius cannot occur “without the exertion of a co-operating power in the mind of the Reader.” 39  Exertion entails mobility, a movement from merely reading to actively thinking and feeling.  This is a version of the argument from process and progress, but a version which posits the author as the agent of refinement and perfection.  The law, in other words, must consult the interest of the great writer to ensure the upward intellectual, if not economic, mobility of society as a whole.

Wordsworth’s compulsive genius nevertheless remains outside the practical world of public affairs.  And even to speak of taste and the power of the reader’s mind is to abide by the terms of reception and consumption.  Perhaps this is why Wordsworth’s final court of appeal is a suprahistorical audience far removed from present-day readers: “Towards the Public, the Writer hopes that he feels as much deference as it is entitled to: but to the People, philosophically characterised, and to the embodied spirit of their knowledge, so far as it exists and moves, at the present, faithfully supported by its two wings, the past and the future, his devout respect, his reverence, is due.” 40  Only an immortal readership can honor an author’s permanent rights.  M. H. Abrams long ago noted the marked tendency in Romantic critical theory to discount or even to spurn the interests of the audience: the Keats who claimed to write “with the least Shadow of public thought,” Carlyle’s heroic genius that enacts “laws” and “privileges of its own,” Mill’s pariah poet whose writing, far from being a gift to readers, “is of the nature of soliloquy.” 41  How much of this reaction

39. William Wordsworth, Wordsworth’s Literary Criticism, ed. W. J. B. Owen (London: Routledge & Kegan Paul, 1974), pp. 210-11.

40. Wordsworth, p. 214.  Quoting this passage, Jon Klancher summarizes Wordsworth’s hopes for literature as they are set out in the 1815 Essay: “Literature is to be the dialectical negation of a fated world of textual commodity exchanges, a literature which never addresses itself to the social present but realizes its audience only at the end of time,” in The Making of English Reading Audiences, 1790-1832 (Madison: Univ. of Wisconsin Press, 1987), p. 149.

41. M. H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Tradition (Oxford: Oxford Univ. Press, 1953), pp. 25-26.

18

to the civic-mindedness of rhetorical culture is owing to the literary property debate is impossible to gauge, though it is worth recalling that many of these same critics took part in successful campaigns, in 1814 and 1842, to lengthen the terms of copyright protection.  The 1842 Act in particular, it is said, was as much an author’s law as the 1710 Act had been the booksellers’. 42

 Index

Copyright and Canonicity

Wordsworth’s contradistinction between writing for the ages and “being forced to court the living generation,” as he called it, 43 suggests one other consequence of the literary property debate, namely the extent to which a limited copyright heightened the sense that the canon was made up exclusively of old works.  In effect, the test of time was keyed to the terms of copyright.  “A period of fourteen Years is a sure Test of every book,” argues one opponent of perpetual copyright.  “The term of legal protection,” writes another, “outlives the great bulk of books that are published.  Nine hundred and ninety-nine of a thousand have little merit but their novelty… How few books published in the last century are re-printed in this?  How few books of this will be re-printed in the next?” 44  Johnson, whom we usually credit with re-introducing the Horatian test of a century, initially endorsed perpetual copyright, only later to reverse this view and to favour a limited if lengthy term of copyright.  Perhaps the protracted legal wrangling with Tonson over the Shakespeare copyright led to his change of heart.  Boswell reports that in 1763 Johnson advocated a term of sixty years.  A few years later, the period of the Preface to Shakespeare, Johnson extended this limit to a hundred years. 45  By the decisive year 1774, Johnson’s test of time had been

42. The 1814 Act extended the period of copyright to 28 years, or the term of the author’s life.  The 1842 Act provided protection for forty-two years, double the longest term set by the 1710 Act, though this was still inadequate for Carlyle, who clamoured for a term of sixty years.  Under the Berne Convention, the period of copyright at present is set at 50 years following the author’s death.  See Feather, A History of British Publishing, pp. 171-74.

43. “Petition of Wm. Wordsworth, Esq.” (1838?), in Three Speeches Delivered in the House of Commons in Favour of a Measure for An Extension of Copyright, ed. T. N. Talfourd (London, 1840), p. 114.

44. E. Thurlow et al., as reported in The Cases of the Appelants and Respondents, in Parks, ed., Six Tracts, 1764-1774, p. 14; Lord Gardenston, as reported in The Decision of the Court of Session, in Parks, ed., Six Tracts, 1764-1774, p. 23.

45. Boswell, Life of Johnson, 1:438.

19 Index

reduced by half: “In fifty years,” he told Strahan, “far the greater number of books are forgotten and annihilated, and it is for the advantage of learning that those which fifty years have not destroyed should become bona communia, to be used by every scholar as he shall think best.” 46

Johnson develops this argument in another context, where he states that it is “for the general good of the world” that “valuable” works ought to be universally recognized “as belonging to the publick.”  If copyright were to remain perpetual, according to Johnson, “no book could have the advantage of being edited with notes, however necessary to its elucidation, should the proprietor perversely oppose it.” 47  Johnson does not admit an interest here, though we should recall both his edition of Shakespeare and the Lives of the Poets.  It is one of the ironies of literary history that Johnson, champion of the common reader, wrote his Lives as prefaces to an edition that was deliberately designed to divert attention from the one reprint series, Bell’s, which the common reader could afford. 48  Johnson’s was the prestige edition.  The London booksellers believed that Johnson’s name before their “elegant and accurate edition of all the English Poets of reputation” might help them preserve at least a symbolic hold on their literary property. 49  To this day, critical editions remain one way of maintaining rights over older works.  The opponents of perpetual copyright were the first to recognize this: the notes and emendations supplied by a hireling critic, they typically argued, “carry along with them a property in the book thus manufactured, and each critic becomes proprietor of a work which he was never capable of writing.  In this way, not only the works of Shakespear, but those of Spenser, Ben Johnson [sic], Butler, Milton, &c., have been appropriated by different commentators.” 50  All this critical activity did much to magnify the aura and authority of English works,

46. The Letters of Samuel Johnson, ed. R. W. Chapman (Oxford: Clarendon Press, 1952), 1:349

47. Boswell, Life of Johnson, 2:259.

48. See Thomas F. Bonnell, “Bookselling and Canon-Making: The Trade Rivalry over the English Poets, 1776—1783,” in Studies in Eighteenth-Century Culture 19, ed. Leslie Ellen Brown and Patricia Craddock (East Lansing, Mich.: Colleagues Press, 1989), pp. 53-69.

49. Boswell, Life of Johnson, 3:110.

50. Sir Ilay Campbell, Information for Alexander Donaldson, in Parks, ed., Six Tracts, 1764-1774, p. 20.

20

to make them appear as classics.  But the truth of the matter was that, at least insofar as the book trade was concerned, the drive to surround these works with scholarly apparatus was fueled less by any profound respect for England’s cultural heritage than by greed.

That said, the copyright debate arguably helped to crystallize certain notions of canonicity and textual authenticity.  Though the copyright debate produced no clear definition of intellectual property, one thing became apparent after the reversal of 1774: if the ideas in a work are held to circulate freely upon publication, then copyright legislation cannot protect those ideas, but only the medium or language through which they are expressed. 51  Publishers eager to extend their rights over canonical works are thus given an encouragement to rely on authentic copy-texts of the work, those copies that are verifiably identical or approximate to the original language through which the author has produced his or her ideas.  There are other, intellectual consequences as well.  If ideas are outside copyright protection, then it is the formal qualities of a work, its style, that become the focus of legal contention, and the determining criteria for canonicity.  Alvin C. Kibel has distinguished between two categories of great books: the cultural document, whose message “can be formulated in other words” - Kibel gives as examples the Reform Act and Newton’s Opticks - and the canonical text, whose original version we seek out because we “insist that its given form is the only means through which its message can be reliably transmitted.” 52  It is a distinction that first begins to operate within the literary property debate.  Indeed, one pamphleteer even cites Newton, one of Kibel’s example, as an author whose greatness stems from his ideas and not his style: “The genius of Newton was not of a literary cast, nor does he raise our admiration or command our respect so much as an

51. This view is prevalent to this day.  According to Donald M. Cameron and Bruce W. Stratton, lawyers who specialize in intellectual property, “Copyright, as its name suggests, protects the right to copy.  It protects the arrangement of symbols used to express ideas.  But it does not protect the ideas expressed by the symbols, only the form or a translation of the form.” in “Copyright Fight Moves to Small Screen.” Toronto Globe and Mail, 27 Feb. 1990.

52. Alvin C. Kibel, “The Canonical Text,” Daedalus 112 (1983): 239-240.  As the canonical text is treated as “a continual source of meaning,” its interpreters are expected to refer to its original version.  As Kibel suggests, “anyone proposing to discuss the works of Plato, St. Mark, Rousseau, or Freud had better know them by direct acquaintance, not by hearsay” (239).

21 Index

author, as does in the capacity of an inventor or artist… It is Sir Isaac Newton the mathematician, the experimentalist, the mechanic, and not the writer, whose name is so highly honoured and transmitted with so much renown to posterity.” 53  Not only is “literature” here identified exclusively with the verbal medium, but implicitly, as well, the canonicity of a written text is to be judged on the basis of its formal or aesthetic features, and not its discursive content.

This brings me back to the doctrine of originality.  If the doctrine of originality is a by-product of copyright, then the doctrine involves only those aspects of a work, its verbal features, that can be protected.  In a culture that prizes original genius, it is an author’s style that serves as evidence of his or her uniqueness.  Yet while the author’s words are canonized, there are many ideas in the work which continue to be transmitted even to other authors.  The modern author learns to avoid certain rhetorical formulae, including commonplaces, topoi, and traditional figures, while continuing to share with other authors less obviously stylistic conventions, such as genres, themes, or even allusions. 54  The decision of 1774 made it clear that copyright could not ultimately hinder the circulation of ideas.  It follows that authors have as much right to ideas as the public, and may participate just as freely in the formation of the culture; to this extent authors’ interests may not in the long term be opposed to the public interest.  It is this belief that is the most striking repercussion of the copyright debate, the sense that authors, however transcendent, can be linked to their cultures of origin, that works are written within a social and literary history, and that lines of continuity can be traced even among the most apparently unique works.

It is a belief openly expressed in arguments against perpetual copyright.  Responding to the claim that originality could only be rewarded with permanent royalties, anti-copyright critics argued

53. W. Kenrick, An Address to the Artists and Manufacturers of Great Britain, in Parks, ed., Eight Tracts 1774-1775, pp. 9-10.

54. Northrop Frye once noted that copyright obscures but in no way erases the readerly conventionality of written texts: “In our day the conventional element in literature is elaborately disguised by a law of copyright pretending that every work is an invention distinctive enough to be patented.  Hence the conventionalizing forces of modern literature - the way, for instance, that an editor’s policy and the expectation of his readers combine to conventionalize what appears in a magazine - often go unrecognized,” in Anatomy of Criticism (Princeton: Princeton Univ. Press, 1957), p. 96.

22

that there were “very few Productions of modern Authors… whose Sentiments are new or original.”  Though this critic seems intent on reviving a much older debate, the ancients and moderns, he emphasizes that contemporary works are inescapably intertextual, even with one another.  The courts, he predicts, will soon be swamped by lawsuits brought by authors eager to fix their uniqueness: “Poet would commence Action against Poet, and Historian against Historian, complaining of literary Trespasses… The Courts of Law must sagely determine Points in polite Literature, and Wit be entered on Record.” 55  Echoing such sentiments, Lord Gardenston of the Scottish Court contends that, if the principle of literary property were taken to its logical extreme, quotation alone could be considered “literary theft.”  Worse, the canon would be off limits to new poets seeking inspiration: “Who steals from common authors,” says Gardenston, “steals trash; but he who steals from a Spencer, a Shakespeare, or a Milton, steals the fire of heaven, and the most precious gifts of nature.” 56  Where Young spurns “borrowed riches,” Gardenston inherits the gifts of the canonical gods.  Gone are the dwarves on the shoulders of giants: here are authors building on a tradition.  “The Interest of Literature,” to use one critic’s phrase, demands the free exchange of ideas, sentiments and techniques among all authors. “The Learning of the present Age,” he says, “may be considered as a vast Superstructure, to the rearing of which the Geniuses of past Times have contributed their Proportion of Wit and Industry; to what Purpose would they have contributed if each of them could insist that none should build on their Foundations?” 57

This use of the classical trope of “foundations” may recall an earlier neoclassical emphasis on emulating rhetorical models, but I don’t believe this is what this critic has in mind - the Act of 1710 had, after all, excluded from its jurisdiction the classic Greek and

55. An Enquiry into the Nature and Origin of Literary Property (London, 1762), rptd. in Stephen Parks, ed., Horace Walpole’s Political Tracts (1747-1748), with Two by William Warburton on Literary Property (1747and 1762) (New York: Garland, 1974), pp. 12-13.  Parks has presumably followed A. S. Collins [Authorship in the Days of Johnson (London: Robert Holden, 1927), p. 85] in erroneously attributing this tract to William Warburton.

56. Lord Gardenston, as reported in The Decision of the Court of Session, in Parks, ed., Six Tracts, 1764-1774, p. 26.

57. An Enquiry into the Nature and Origin of Literary Property, in Parks, ed., Two by William Warburton (see n. 35 above), pp. 4-5.

23 Index

Roman texts, as well as all books in “any Foreign Language printed beyond the Seas.” 58  I think rather that his assertions anticipate, however crudely, another epochal document, T. S. Eliot’s “Tradition and the Individual Talent.”  Eliot’s essay has its share of classical tropes: “The existing monuments form an ideal order among themselves.”  But the telling metaphors are those of trade, where the modern poet “surrenders” his personality in exchange for “the historical sense,” and those of consciousness, not simply the awareness of the literary past but tradition itself perceived as a dynamic cultural memory.  The modern poet, Eliot writes, “must be aware that the mind of Europe - the mind of his country - a mind which he learns in time to be much more important than his own private mind - is a mind which changes.” 59  That intellectual property can be envisaged as a mind which undergoes what Eliot calls “refinement,” a mind to which the modern poet must become accultured, is possible only given the ascendancy of certain ideological assumptions first introduced during the literary property debate.  Eliot’s “mind of Europe” is an imperialist fiction yet, insofar as it signifies a cultural storehouse open to all, it is equally in a line with Yates’s freely circulating ideas, and the cultural foundations and literary superstructures of the anti-copyright pamphleteers.

Eliot’s modern poet who seeks refinement in the literary tradition is identical to the many authors and readers who, according to these pamphleteers, might find “improvement” in the very works denied them by the commercial and cultural effects of perpetual copyright.  Thus, the pamphleteers claim, the London booksellers inhibit both the rise of English letters and the refinement of English manners; perpetual copyright allows them to occupy

several Classic, or capital writers in our Language, ancient and modern.  [They] carefully secrete them from common use… to the no small detriment of the commonwealth of letters, which is hereby deprived of all the benefits arising from that grand source of Improvement, the emulation of various artizans; who would constantly be striving to surpass each other in the usefulness, elegance and cheapness of such works, had they all an equal, incontested right to the fabrication and disposal of them. 60

58. See Ransom, The First Copyright Statute, p. 103.

59.  T. S. Eliot, Selected Essays, 2nd ed. (New York: Harcourt, Brace & World, 1950), pp. 5-6.

60. Observations Occasioned by the Contest about Literary Property (Cambridge, 1770), rptd. in Stephen Parks, ed., Freedom of the Press and the Literary Property Debate: Six Tracts, 1755-1770 (New York: Garland, 1974), pp. 12-13.  Parks attributes this pamphlet to Edmund Law without providing evidence for this ascription.

24

The financial metaphors of “benefits” accruing from “capital” authors are indicative not simply of an increasing commodification of literature, but of a view that is willing to let exchange rates and aggressive competition (“constantly be striving to surpass each other”) within an open market dictate at least in part the cultural value of works in print.  The passage also expresses an idea that is crucial to any understanding of canon-formation: for a healthy level of literary production to be maintained, it suggests, there must exist conditions adequate to ensure the cultural reproduction of works, their ongoing reintroduction and circulation among generations of authors and readers. 61  Perpetual copyright restricts such reproduction, and thus discourages new writing, obstructs the socialization of the public, and undermines the survival of the very canon the London monopoly has so long claimed as its own.

For these anti-copyright pamphleteers, what was most deplorable was the booksellers’ claim that they alone should maintain economic control over works that had long-since become part of English culture.  The canon, these critics contended, was beyond copyright.  The London booksellers were no more entitled to own the canon than to possess the culture which produced it.  The canon was a part of the national identity, a cynosure of “Englishness.”  It is not my purpose here to question this notion or its ideological implications, only to suggest that the provincial booksellers won their day in court as much on the strength of their legal and economic arguments, as by the force and emotional appeal of this notion of tradition.  Harry Levin reminds us that the concept of a literary “tradition” has emerged only within the last two hundred years. 62   Its origins, I would suggest, can be traced to the great literary property debate of the eighteenth century.  Clearly the anti-copyright critics relied on the

61. John Guillory rightly notes that canon-formation involves both the evaluation and the preservation of literary works, in his entry for “Canon,” in Critical Terms for Literary Study, ed. Frank Lentricchia and Thomas McLaughlin (Chicago: Univ. of Chicago Press, 1990), pp. 233-249.  Acts of judgment, Guillory suggests, “are necessary rather than sufficient to constitute a process of canon-formation.  An individual’s judgment that a work is great does nothing in itself to preserve that work, unless that judgment is made in a certain institutional context, a setting in which it is possible to insure the reproduction of the work, its continual reintroduction to generations of readers” p. (237).

62. Harry Levin, “The Tradition of Tradition,” in Contexts of Criticism (Cambridge, Mass.: Harvard Univ. Press, 1958), pp. 55-66.  See also Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977), pp. 48-54.

25 Index

idea of tradition for its symbolic power, for its enabling sense of social and historical continuities that could never be contained by the efforts of a few wealthy booksellers.  In this way, the idea is as much a fabrication of the period as any of the other important traditions that were then being “invented,” from the national anthem and the British flag to the forged folklore of Ossian and Rowley. 63  Ossian, indeed, is cited by Lord Auchinleck of the Scottish Court as an example of a canonical figure whose works have been so deeply absorbed into the cultural fabric as to transcend questions of ownership: “Let us consider,” Auchinleck suggests, “that anciently very valuable performances were preserved only by the memory.  It is said Homer was so, and Ossian… The poem of Chevy-chace, so much celebrated, and upon which we have a criticism by Mr. Addison, was, in my remembrance, repeated by every body. - Was there a copy of this little heroic poem?  What privilege could the author have in it, after he had let one man get it by heart? 64

Much as with the common law tradition, a tradition based on continual refinement and adaptation to changing circumstances, literature could only be properly understood within a socio-historical context, within a system of exchange, circulation, and reproduction that extends over multiple generations: “Our booksellers,” Lord Kames remarked acerbically, “aiming at present profit, may not think themselves much concerned about futurity.  But it belongs to judges to look forward; and it deserves to be duly pondered whether the interest of literature in general ought to be sacrificed to the pecuniary interest of a few individuals.” 65 The judges concluded that the canon could not be considered private property; it was more like a partnership, a joint-stock company that grew in size and membership over generations.  “In the course of time, and various successions,” de-

63. Eric Hobsbawn defines an “invented tradition” as “a set of practices, normally governed by overtly or tacitly accepted rules and of a ritual or symbolic nature, which seek to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past,” in his “Introduction: Inventing Tradition,” in The Invention of Tradition, ed. E. Hobsbawn and Terence Ranger (Cambridge: Cambridge Univ. Press, 1983), p. 1.  Hobsbawn’s examples include nationalist ideographs such as flags and anthems, as well as fictions such as Ossian and Rowley.

64. Lord Auchinleck, as reported in The Decision of the Court of Session, in Parks, ed., Six Tracts, 1764-1774, p. 5.

65. Lord Kames, as reported in The Decision of the Court of Session in Parks, ed., Six Tracts, 1764-1774, p. 20.

26

clared Lord Gardenston, “it must happen, that the property of books must be split and divided among a vast and indefinite number of sharers.” 66  That the canon is a cultural heritage we can all share is a perception we sometimes take for granted; in the late eighteenth century, it is a perception only dimly, if nonetheless decisively, glimpsed.

The distinction between public ideas and private invention greatly antedates the literary property debate of the eighteenth century.  Horace uses the conceit in his Ars Poetica when he advises young writers on how to revitalize well-worn subjects: “The common stock will become your private property [publica materies priuati iuris erit] if you don’t linger on the broad and vulgar round, or anxiously render word for word.” 67  The copyright debate, however, made the distinction a matter of legal and economic purport.  It also revealed something already implicit in Horace’s conceit, namely that the notions of convention and originality function as defining oppositions.  Walter Benjamin articulated the paradox in his essay on mechanical reproduction: “the uniqueness of a work of art is inseparable from its being imbedded in the fabric of tradition.” 68  Awareness of this paradox should not preclude us from discerning in the literary property debate the emergence of the modern proprietary author, and the consequent valorization of genius and originality.  It should only serve to remind us that the debate ended with the upholding of a severely restricted term of copyright, and the defeat of a commercial monopoly in the name of an English literary tradition.

Dalhousie University

66. Lord Gardenston, as reported in The Decision of the Court of Session, in Parks, ed., Six Tracts, 1764-1774, p. 26.  Gardenston is here suggesting some of the difficulties that might be involved in distributing the ownership of a particular author’s copyright among multiple heirs and descendants.  His point is that unregulated public ownership of canonical texts is both more intellectually desirable and more administratively practicable than the maintenancessofnations/"> The Competitiveness of Nations

in a Global Knowledge-Based Economy

August 2002

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