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.
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.”
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.” As Loewenstein writes: “The book trade had forced a public reckoning with the social construction of property per se.”
As we consider the metaphysical complexities of textual objects, we also become increasingly aware of the printed text’s biopolitical dimensions. 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…”
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.”
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?
 See http://www.copyrighthistory.com/anne.html for the text of the Statute of Anne.
 Joseph Loewenstein, The Author’s Due, Note 36, 268.
 Loewenstein, The Author’s Due, Note 38, 268.
 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.
 Paul K. Saint-Amour, Modernism and Copyright, 28.
 Lee Edelman, No Future: Queer Theory and the Death Drive. Durham: Duke University Press, 2004.
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