Mental Labor, Books, Objects, and the Origins of American Copyright Law

Connecticut passed the first American copyright statute on January 29, 1783: An Act for the Encouragement of Literature and Genius, which secured to authors copyright terms of fourteen years, renewable once, following the pattern established by the Statute of Anne of 1710.

Soon thereafter, lobbying by prominent men of letters–– Reverend Timothy Dwight, Joel Barlow, Jeremy Belknap, and Thomas Paine––led to the passage of copyright laws by the legislatures of Massachusetts and Maryland. Thus, by the time that the Continental Congress met to consider copyright matters, three state-level copyright regimes had already been set in motion.

Some records survive attesting to the campaign launched by concerned citizens on the subject of literary property: letters seeking to convince the Continental Congress to take action on copyright matters (many of which recommended to the several states that they pass intellectual property laws). Particularly interesting is a note sent by Joel Barlow, a New England theologian, writer and leading member of the literary group “the Hartford Wits,” to Elias Boudinot, president of the Continental Congress.

Barlow warns Boudinot of the “embarrassment” that “lies upon the interests of literature and works of genius in the United States.” The insecurity of intellectual property, Barlow writes, is an “evil of society” that must be remedied by a “statute securing the copy-rights of authors,” and thus “protecting a species of property which is otherwise open to every invader.” All other countries, Barlow insists, lent encouragement to “the exertions of genius”: “The Historian, the Philosopher, the Poet and the Orator have not only been considered among the finest ornaments of the country which produced them; but have been secured in the profits arising from their labor, and in that way received encouragement in some proportion to their merit in advancing the happiness of mankind.”[1]

Literary property was uniquely personal, Barlow argued. “There is certainly no kind of property, in the things, so much his own, as the works which a person originates from his own creative imagination.” Additionally, to labor as a cultural worker was to spend a great part of one’s life wasting time, fortune and even health in improving one’s knowledge and correcting one’s taste. For this reason, the state was compelled to help the cultural worker in preventing the sale of his works by pirates, “as a compensation for his labor in producing them.”

Without effective controls on intellectual property, authors lived under constant fear that “some ungenerous Printer” would “immediately seize upon his labors, by making a mean and cheap impression, in order to undersell the Author and defraud him of his property.”[2] Reputations might be permanently damaged by “having his work appear under the disadvantages of typographical a bad paper, a mean letter and an uncouth page, all which were necessary for the printer in order to catch the vulgar by a low price.”

Inspired at least in part by letters like that penned by Barlow, the Continental Congress referred the matter of copyright to a three-person committee.On April 28, 1783 the committee concluded that “nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of the arts and commerce.” This spurred a recommendation to the states “to secure to the authors or publishers of any new books, not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns the copyright of such books.”

We should emphasize here the contested character of the proposition “nothing is more properly a man’s own than the fruit of his study.” Thomas Jefferson, for example, advocated exactly the opposite position. In exchanges with James Madison in the 1780s, Jefferson extended his famous premise that “that the earth belongs in usufruct to the living” to the question of intellectual property. “It has been pretended,” Jefferson would later reflect, “that inventors have a natural and exclusive right to their inventions.” However, if nature had made “any one thing less susceptible than others of exclusive property,” it was the “action of the thinking power called an idea.”

The “peculiar character” of such “property” was that “no one possesses the less, because every other possesses the whole of it.” The man who received an idea from me was akin to “he who lights his taper at mine,” and thus gained illumination “without darkening me.” Jefferson did not deny that intellectual property law might provide a useful spur to technological and cultural innovation, but he did gainsay the Lockean logic of ideas as things to which liberal rules of ownership pertained.[3] Madison, while responsible for pushing for federal protection of intellectual property rights, privately expressed doubts quite similar to those voiced by Jefferson.

Objects

Bracketing or ignoring such worries and concerns, twelve of the thirteen individual states passed copyright statutes (Delaware remained a holdout) between 1783 and 1786.[4]

As the states passed copyright acts, the legislative scene became crowded with objects. The state copyright statutes stipulated the protection of an array of inanimate things: “books,” “books and writings,” “books and pamphlets,” “books, treatises and other literary works” and “books, pamphlets, maps and charts.” Most also called attention to the special ontological properties of a certain textual object: the “unpublished manuscript.” Two states (Massachusetts and North Carolina) included formal registration requirements, calling for the deposit of a certain number of copies in a state repository––that is, the maintenance of correspondence between representation and object, along the lines of gold bullion and paper notes in new forms of monetary circulation. The Pennsylvania statute proposed a physical alteration to the book qua object (in the form of a copyright notice page). Other statutes required confiscation of illicit materials. Some required that books be solid in sufficient quantities in order to qualify for copyright protection, while others mandated that book prices not exceed customary limits. [5]

Here, we should pause to point out two things. On the one hand, these state-level juridical arrangements of objects––organized around the Ur-object of the book––initiate the central dialectic at the heart of copyright history (and hence, in our reading, the history of cultural work). This dialectic works as follows: first, the legal order establishes a limit that circumscribes the field of cultural objects––restricting coverage to literary texts, for example. Next, these limits are transcended, with the assimilation of previously excluded objects (musical texts, musical and dramatic performances, photographs, lithographs, newspapers, government reports, dance scores, architectural plans, corporate logos, advertising posters, recordings, radio broadcasts, motion pictures, TV shows, cassette tapes, DVDs, digital downloads)–– and a new juridico-aesthetic order is born. The process then repeats itself, seemingly, ad infinitum.

On the other hand, we should try to resist certain temptations that often creep into discussions of intellectual property law: technological determinism and objectal fetishism. There are many different ways to engage with the history of material and conceptual innovation. Technological determinism is but one. There is no law that compels engagements with technology to take a teleological or “inevitabilist” turn. In this study, we favor explanations that prioritize class conflict (and its multivariate consequences) over the autonomous “needs” and “demands” of new technologies, while seeking to recognize that there is a special relationship between corporate capitalism and the object-world its technologies bring into being. We also seek to avoid a certain fetishization of the “new object” that sometimes creeps into histories of IP. There is a strong temptation to treat the “new object”––the photograph, the motion picture, the sound recording, the bit torrent–as ontologically exotic, while the book is naturalized or banalized, treated as an ordinary and uncomplicated thing, easily grasped without any special intellectual effort.

Against this impulse, we should emphasize, with Meredith McGill, that the book is, in fact, an “extraordinary object.” McGill directs our attention to a potent allegory of the mysterious metaphysics of the book: in the 1830s, American publishers began to reprint entire books (typically, famous European novels) as magazine “extras,” held together by a single stitch. In these “extras,” the humble single stitch carried profound ontological significance—turning books into sheets of paper into “newspapers,” as if by magic, and thus allowing reprint publishers to take advantage of special postal rates.[6] Presumably, the addition of several more stitches, and front and back covers, would have turned these “newspapers” back into “books.” (Avid readers in the 1830s and 1840s in fact often collected these supplements–published in a standard quarto size to facilitate user-end collation––and arranged them into uniform libraries). Nothing, however, would have changed in the arrangement of letters on paper. To summarize, we might say that while the metaphysics of the book cannot be reduced to the question of law and property, nevertheless, attention to law and property is critical if we are to properly understand the metaphysics of the book.

To further illustrate this point, consider the standard copyright page of the American academic paperback. As McGill underlines, this usually-skipped-over but nevertheless meaningful page “claims property in the names of both author and publisher.” It acknowledges “individual authorial agency and the name and location of the publishing house that brought the book into existence” and “bears the marks of a tangle of national and international regulations and agencies.” The reader learns that the book she holds in her hands is an “object of property that is produced, sold, bought, and consumed under a complex set of constraints that are governed by federal law and international treaty, including domestic and international copyright law, International Standards agreements, which govern the assignment of the International Standard Book Number, and the protocols of the Library of Congress, which supplies both a control number and cataloging data for the use of libraries.”

Looking more closely at the front matter of the book with McGill, we observe that the copyright page of the book announces that the reader’s violation of “reserved” rights could lead to legal action. The book is an object that directs its user not to do a variety of things: “copying large portions of this book by machine or hand, dramatizing or otherwise adapting it, uploading pages onto the web, or transferring them via reprographic technologies that we have yet to imagine.” We are reminded of Jefferson’s objections to property in the products of the mind. Why, exactly, is it that the author and publisher retain such expansive and specific property rights in this particular commodity past the point of sale?[7] We will come to examine the answers to this question. Here, we should highlight the strangeness of the fact that we only infrequently remember that this is a question at all.

In our conversations about literature, the book is often swapped out and replaced with a much more ethereal and abstract object: the “text.” We need to be mindful of the distinction between the two forms. All books are texts. Not all texts are books. A metaphysically significant event—“publication”––is required to transform the unpublished manuscript into a book. Released into the wilds of the market, the book takes on what Margaret Radin calls the “four indicia of commodification”: 1) objectification, 2) fungibility, 3) commensurability, and 4) money equivalence.[8] In other words, as the unpublished manuscript becomes a book, it is made into an object that can be assigned a value and compared to other objects, ranked and organized against the fixed measure of the “universal equivalent” of money. As the bearer of this quadruple commodity-being, the original object of intellectual property turns out to be as weird and occult a thing as any of its latter-day iterations.

Notes

[1] Letter from Joel Barlow to the Continental Congress (1783), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org. Italics added.

[2] Ibid.

[3] Thomas Jefferson, “The Invention of Elevators” (Letter, 1813), quoted in Seana Valentine Shiffrin, “Lockean Arguments for Private Intellectual Property” in Stephen R. Munzer, ed. New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001).

[4] Oren Bracha, “Commentary on the Connecticut Copyright Statute 1783,” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org, 2008.

[5] The phrasing of the subject matter protected by the statutes varied. It included: “books” in South Carolina; “books and writings” in Maryland”, “books and pamphlets” in New Jersey, New York, Pennsylvania, and Virginia; “books, treatises and other literary works” in Massachusetts, New Hampshire, and Rhode Island; and “books, pamphlets, maps and charts” in Connecticut, North Carolina and Georgia.

[6] Meredith McGill, American Literature and the Culture of Reprinting, 2-3.

[7] Meredith McGill, American Literature, 8-9.

[8] Margaret Radin, Contested Commodities, 118.