U.S. Intellectual History Blog

Cultural Work, The Law and the Biopolitics of the Book

Every effort in the direction of American copyright legislation––beginning, in earnest, in the immediate aftermath of the American Revolution––looked back to the English Statute of Anne, passed on April 10, 1710. It is imperative, therefore, to briefly explore that law. This work will allow us to contemplate continuities and breaks in the transition from English to American intellectual property law.[1]

Joseph Loewenstein explains that historians often misconstrue the Statute of Anne by reading it through the cases that accumulated in its wake (in particular, dramatic suits such as Donaldson v. Beckett (1774), which concerned the contest between common law and statutory protections of literary property). While the Statute of Anne is in some respects properly called “the first English copyright law,” we can only understand its structure and meaning by reading it as a clarification of “the traditional stationer’s copyright that had evolved from sixteenth-century guild regulations.” In other words, paradoxically, to get to the heart of the “first English copyright law,” one must problematize its “first-ness.”

The Stationer’s copyright, Loewenstein emphasizes, was a “limited industrial monopoly, conferred by the guild on its members.” What the Statute of Anne sought to do was provide a “clear, statutory rendering of a traditional form of trade regulation.” Although it would develop, over the eighteenth century, into the centerpiece of a legal regime based on the figure of the author, the Statute of Anne sought to regulate the manufacturing side of the book trade, not the “creative content” side.

To situate the Statute of Anne correctly, then, one must go back to 1557, the year in which the Crown granted the London Stationers’ Company a printing monopoly. This monopoly lapsed in 1694, at which point was initiated a period of confusion and jockeying for a new monopoly grant. Initially, the English state was largely unresponsive to this agitation from book trade representatives. Over time, however, Stationers won the ear of legislators by couching their appeals in the language of liberalism, emphasizing the Whig keyword of “property.” A typical petition sought “a Bill for the securing Property in such Books, as have been, or shall be, purchased from, or reserved to, the Authors thereof.”[2]

The Statute of Anne was passed in 1710, granted to “the Author of any Book or Books and his Assignee or Assigns” the “sole Liberty of printing and reprinting such Book or Books for the Term of fourteen Years.” The Statute placed the process of “registration” at the center of the act of gaining a copyright. Following the expiration of the initial term of fourteen years, “the sole Right of printing or disposing of Copies” returned to authors––“if they are living”––for an additional term of fourteen years.

If cases like Donaldson v. Beckett can lead to abuses in the hands of careless historians of the Statute of Anne, Loewenstein insists that its arguments may be studied for insight into the novelty of the concept of “literary property” ratified sixty-five years prior. It is not insignificant that Donaldson v. Beckett revolved around “literary property debates,” nor is it without interest to observe lawyers in the case deconstruct the word “property.”

The Parliamentary historian who memorialized Donaldson v. Becket noted that Donaldson’s lawyers argued that Statute of Anne was not merely “an accumulative act declaratory of common law,” but rather a “new law” constructed to “give learned men a property they had not before.”[3] As Loewenstein writes: “The book trade had forced a public reckoning with the social construction of property per se.”

Biopolitics

As we consider the metaphysical complexities of textual objects, we also become increasingly aware of the printed text’s biopolitical dimensions.[4] We have seen, with Meredith McGill, some of the the ways in which the book’s front matter is constructed around the life and death of the author. The copyright page reminds us that proscriptions on certain consumer deployments of the book are not eternal, but are rather fated, by law, to expire at some point in the future. Biopolitics enters the picture as the law calculates the exact date of this expiration by filling in the variables of the standard formula of “death of the author plus some additional span of time” (traditionally justified as an extension of the deceased writer’s property rights to his wife and heirs).

Once this term expires, the book becomes part of the “public domain” to which it was originally dedicated––a dedication suspended, during a certain period of “life” and “life after death” by means of an artificial monopoly. Although the first U.S. Copyright Act adopted a standard term of fourteen years, with the option of a fourteen-year renewal term if the author was still living (inspired, via several relays, by the norms of early modern English apprenticeship law), it is useful to recall that the original proposal was a nineteen-year term, and that Thomas Jefferson arrived at this nineteen-year following a consultation with the Comte de Buffon’s recently compiled mortality tables.

Literary scholar Paul Saint-Amour reminds us of contemporary copyright law’s attraction to biopolitical jargon. “We speak readily of ‘revived’ or ‘zombie’ copyrights and ‘orphan’ works,” Saint-Amour writes, “because intellectual properties whose duration is measured from the author’s death are envisioned in… eerily organic ways.” Copyright’s gothic morbidity is linked to its “quasi-religious role of protecting, commemorating, and even conferring a kind of immortality upon creative individuals…”[5]

The biopolitics of copyright cannot be properly understood without sustained attention to the politics of gender. Significantly rooted in fantasies of “literary paternity,” copyright doctrine is, in Saint-Amour’s terms, “emphatically reproductive.” Momentarily jumping ahead in our narrative to 1831, we observe a Copyright Act revision that vest ownership of the fourteen-year renewal term in the prematurely deceased author’s “widow, or child, or children, either or all then living.” This rhetoric of “heritable intellectual property estates” incentivizes a certain model of intergenerational wealth transmission. It thus becomes imperative, Saint-Amour suggest, to bring to bear upon intellectual property history the critical work of Lee Edelman on the ideology of “reproductive futurism”––“the inability to conceive the future without the figure of the Child… who has come to embody for the telos of the social order.”[6]

Saint-Amour concludes that, in light of these realities, copyright “exceeds the limited incentive-making function in which it originated and becomes crucially entangled in the management of lives and even in the question of what a life is.” Thus, for Saint-Amour, the most urgent questions today regarding the history of the book-as-object directly engage with the changing norms of authorship as symptoms of (as Nikolas Rose might put it) mutating paradigms of the “production of life itself.”

Intellectual property scholars have incorporated Foucault’s notion of biopolitics mostly in relation to the interpretation of the new high-tech/pharmaceutical regime of patent law. The narrative underlying such accounts tend to describe the exhaustion of classical liberal property thought––the product of centuries of “possessive individualism”—in the face of bizarre mutations of property, apparently ripped from the pages of science fiction.

The more we research the history of intellectual property, however, the more we recognize that contemporary IP paradoxes highlight long-running––rather than dazzlingly new––ontological problems. It may seem, at first glance, that nothing could be more unsettlingly contemporary than the European Union’s recent arguments for lengthened copyright terms from actuarial tables that reveal rising life-expectancy rates. But are calculations so different, conceptually, from Jefferson’s consultation with Buffon’s population tables in the 1780s?

Notes

[1] See http://www.copyrighthistory.com/anne.html for the text of the Statute of Anne.

[2] Joseph Loewenstein, The Author’s Due, Note 36, 268.

[3] Loewenstein, The Author’s Due, Note 38, 268.

[4] The classic texts on biopolitics are Foucault’s later lectures: Michel Foucault, Michel Senellart, François Ewald, and Alessandro Fontana. Security, territory, population: lectures at the Collège de France, 1977-78. Basingstoke: Palgrave Macmillan, 2007; and Michel Foucault, Graham Burchell, Colin Gordon, and Peter Miller, The Foucault Effect: Studies in Governmentality: with Two Lectures by and an Interview with Michel Foucault. Chicago: University of Chicago Press, 1991. See also Christopher Breu, Insistence of the Material: Literature in the Age of Biopolitics. 2014; Nikolas S. Rose, Politics of Life Itself: Biomedicine, Power, and Subjectivity in the Twenty-First Century. Princeton: Princeton University Press, 2007.

[5] Paul K. Saint-Amour, Modernism and Copyright, 28.

[6] Lee Edelman, No Future: Queer Theory and the Death Drive. Durham: Duke University Press, 2004.

5 Thoughts on this Post

  1. Kurt, this is so fascinating and germinative, as have been the previous posts in this series. The question of biopolitics is so clearly present in copyright and intellectual property, yet I had never really considered the question as such, and your exploration of it is masterful.

    One question that this biopolitical dimension raises for me is that of how one is to imagine or categorize the author’s remuneration stemming from his (given the stress on the figure of paternity, I suppose the masculine pronoun is necessary) copyright. Is it to be thought of as interest accruing to principal (which is the original work), or as a sort of pension (anachronistically, but maybe not inappropriately, given the intention to sustain the author beyond his productive years), or even as a sort of wage?

    I feel that this becomes a biopolitical question once the issue of heritability comes into play: do widows and children have a right to transfer the copyright because the copyright is interest on principal that they would naturally inherit, because it is a pension they have a title to, or because it is wages–and therefore the transfer of copyright equates to a sort of lost wages or workmen’s comp? The reproductive futurism intrinsic in the latter two categories, in particular, seems to me a provocative match for some of the logic underpinning copyright.

    • Andy, great questions, and thanks for the kind words. The issue of whether the entitlement created by copyright is on the model of pension/wage/usufruct is key, and really sort of obscured in most theoretical treatments of IP.

      To push things forward in this direction, however, it might be useful to review the three main arguments for “labor deserts” or a natural law right to IP that derives from human exertion upon nature. These have intermixed, and the real world of law has often selectively drawn on different components, but maybe laying them out will be helpful.

      First, there is the Lockean justification. This is often misconstrued–not necessarily the fault of the misconstruer, since a lot of the alterations arrive via historically important interpreters of Locke like Blackstone and Smith––as a straightforward formula: mixture of labor plus nature=new property. But for Locke, the formula was more complicated. One target, as is familiar from political theory texts, was the patriarchalism of Filmer. But another–the one that matters most to us here–was the idea of “occupatio” in Roman property law. If “occupancy” grants property rights, then Locke has a problem: cottagers on the commons and the men and women of America would have a claim to ownership that would make English propertization a matter of might rather than right. So “possessio” needs to be introduced: possession derives from “improvement,” and can be initiated by a principal or an agent (“the turfs my horse has cut,” e.g.). Then, as is usually the case with common law, precedents and justifications from Roman and Teutonic as well as canon law are discovered, and the new property regime retroactively naturalized. In the Lockean frame, I would suggest, the key category is the “enjoyment” or “usufruct” (the book, then, would be seen as the landed estate that yields the gentleman his 250 a year, as they say in Jane Austen movies).

      The second source of “labor desert” justifications come from Kant and Hegel. They are not entirely dissimilar from Lockean arguments. Whereas Locke sees property in person as prior, and propertization of nature as secondary, Kant and Hegel want to see human personality as a product of the interaction of subject and object. From this position, the literary object, in which the personality of the author is concretized, commands the protections of the state against violation and despoilation. (These sorts of arguments sustain the very different European IP logic of droit d’auteur or “moral rights”). We see the influence of this line of reasoning in the US in certain more recent cases, such as the Sonny Bono Copyright Extension Act of the late 1990s and the debates surrounding it (many artists and lobbyists argued that the Constitution’s promise of protection of authors’ property “for Limited Times” was ethically wrong). Here, the model is also on the model of landed property and rent-profit, but also much more invested with what Joseph Jenkins calls “the forbear’s desire.” As with inheritance law, biopolitical questions surround the question of how faithfully (and for how long) we must honor the wishes of the dead, and maintain the fictions of filiation, particularly if such activity has harmful effects on the polity that survives the death of the ancestor.

      The third argument is a utilitarian/incentive justification. In some senses, this is the most radical argument. It posits something like a Freudian death drive at the heart of economic life–without the correct spurs, we will all spiral into our own private repetitions, and create nothing. (This is also the function of “the Child” in Edelman’s work, which also explains why “Death Drive” is in his title). It also has a Polanyi-an charge: if economic life always requires intense state activities, then the brief for “hostile privatism” fall apart. “You didn’t build that” (we recall how well that went over…) This third type of justification is closest to a “wage” model and furthest from the landed estate fantasy. Biopolitically, however, it is also loaded–folded back on to the body politic, the nation’s art becomes so many “brats” of America’s brain.

  2. Thanks, Kurt, that is immensely helpful. I think, though, that I may have phrased my initial question poorly though. What I think I was actually asking about was not, “what is the nature of an author’s copyright,” but rather, “what is the nature of royalties?” especially as they become transferrable to the author’s widow and children. Are royalties in the nature of a wage (and therefore the transfer to offspring/spouse is akin to workmen’s comp), interest on principal, or a pension?

    Now that I realize that initial misframing on my part, though, perhaps I’ve kind of voided this thread since it goes in a very different direction, but I hope that clarifies what I was getting at in any case.

    • Andy, thanks again for this. I will try to answer as best as I can.

      As I understand the matter, royalties and residuals are transferable to heirs in the same manner as stocks and bonds and other incorporeal property of that sort. The limit analogy, I think, compares IP heritability with the heritability of licenses: a medical or legal license is personal property that cannot be passed on, but I think that, eg, a taxi driving license (a valuable and scarce thing in most cities) can be passed on to heirs under certain circumstances.

      The calculation of music royalties has always been sort of insanely unscientific, controlled in semi-secret by ASCAP and BMI, the major publishing companies. Nowadays, in the age of Spotify, artists make very little money from such sources. Residuals in TV and movies are worked out with talent guilds and studios, and are basically like union pensions. So long as the rerun or broadcast in question is in a familiar form (late night TV or theatrical presentation, say), the residuals are reliable, as I understand it–but the question for the guilds always concerns the next technology. The WGA strike a few years ago was over digital reissues, which followed earlier actions about VHS reissues and colorization campaigns (if I recall correctly, the union scored a decent victory re: DVDs in the most recent strike) but the longterm strategy of every entertainment company is to get rid of these “legacy costs,” and the unions will have to be very creative to make sure that they are prepared for whatever iterations follows the current Netflix/Hulu/Amazon TV regime.

      But it is crucial to remember that the big money is in the creation of characters and exploitable narrative worlds with a distinctive “total look and feel,” that can be endlessly franchised, turned into toys, sequelized, etc. Court cases usually revolve around alleged unfair derivative use (not royalties), and often hinge on the competing testimony of expert witnesses (many of whom are humanities professors, in case you are looking for extra cash!). Here, the contest often turns into a fight between competing readings of “parody” and philosophical arguments about semiotic similarity and difference (there are many dissertations to be written just about the last 20-30 years). Many cases pit authors against fans: the most interesting recent case saw JK Rowling take on readers who had compiled a Harry Potter dictionary.

      So–the key point is that what matters most to most heirs is not royalties/residuals, but control of property such that rights can be sold for movie adaptations, video games, etc.

      In other recent cases, the main thrust of IP’s grant of the right to exclude to heirs seems to be punitive limitation of scholarship for reasons that nobody can quite figure out. There are a few modernist poets upon whom, basically, one cannot publish. (I am sufficiently chastened by stories of litigious heirs that I do not dare fill in the obvious names here). And it is worth noting that the recent film “Selma,” apparently, was forbidden from using Dr. King’s precise language because King’s heirs control or sold the rights to that language. (This is not the only Civil Rights Movement-related IP/inheritance issue–the classic and essential series Eyes on the Prize was “un-reissuable” for years because of copyright tie-ups). We are certainly living in “interesting times.”™

      • I suppose I should have said, clearly: the inheritance justification for long IP term is mostly bogus, and has been for at least a hundred years? The situation was different in the mid-19th century, when the novel ruled the scene, derivative adaptations were very limited (basically, to stage adaptations or abridgments/illustrated volumes)–but for most of the 20th century, the forbear/heir fantasy masks a reality dominated by corporations and lawyers. It has stood mostly uninterrogated, strangely, given that nobody really thinks that the continuing property rights of, say, Jaden Smith, really have the effect of retroactively going back in time and incentivizing Will Smith to write “Parents Just Don’t Understand.”

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