Eilenberg, "Copyright's Rhetoric and the Problem of Analogy in the British Eighteenth-Century Debates"

Romanticism and the Law

Copyright's Rhetoric and the Problem of Analogy in the British Eighteenth-Century Debates

Susan Eilenberg, State University of New York, Buffalo

  1. The debates over the nature of intellectual property that occupied the attention of literate and semiliterate Britain during the length of the eighteenth century present a wonderful confusion of nonsense and profundity. Generated during a series of suits booksellers brought against one another for infringing upon what some of them (particularly the better-endowed London booksellers) wished to regard as a perpetual and others (particularly the more recklessly enterprising Edinburgh booksellers) preferred to regard as a limited copyright, the rhetoric of both disputants and their judges grew extravagant as attempts to rationalize the irrational failed. Copyright, the product of no farseeing commonlaw or statutory wisdom but rather of a series of precedent-setting accidents, resisted being made sense of, at least the kind of sense the chief participants in the cases professed to seek.

  2. Others before me--Lyman Ray Patterson, Martha Woodmansee, and Mark Rose particularly--have treated the legal, historical, and philosophical aspects of these and similar debates. Because of their work we know that the debates were not what they purported to be: that is, investigations of the status and grounds of intellectual property. It was not, at least at first, authors who sued for control over the publication of their poems and tracts, but rather their publishers, even their publishers' heirs, whose legal successes rarely led them to any excess of generosity towards their writers or those writers' heirs. Talk of authorial property rights, the official subject of discussion, masked commercial and even nationalistic interests; so did the legal antagonists' talk of their concern for the free circulation of ideas on the one hand and for the nobility of authorial renunciation of worldly profit on the other. So the debates were fraudulent, or perhaps merely self-deluded, from the start. Never mind: pursued with sufficient vigor, any idea, perhaps even a fraudulent idea, can lead somewhere, and this one led, surprisingly, to its own realization. For by the time the century was over, the booksellers' fiction about authorial property had more or less come true.

  3. I may as well confess right now that, though I pretended otherwise for years, the charm of all this material for me is precisely its brilliant absurdity, rivaling at moments the best of Lewis Carroll, the sheer fun of it, however, tending suddenly to give way to implications weird enough to make one's hair stand on end--my hair, anyway. So I won't discuss the significance of this new truth--new no longer to any of us--or any of the technical details of its establishment or application. I would rather contemplate the fiction, both its strange bases and its even stranger implications. And in this preference I think I am not alone: not just the legal suitors but also the judges in this controversy (not to speak of the public)--people who must have known better even at the time than to have believed in the self-described motives of the principal actors--were fascinated by these things too. With its furious production of pseudo-philosophical figuration and speculation, the debate might almost be regarded as an early modern science fiction. I suspect the followers of the debates were as fascinated as they were because the fictions--the analogies as well as the legal hypotheses--engaged post-Lockean anxieties about the definition and the integrity of both property and the self.

  4. Eighteenth-century discussions of copyright began from consideration of its status as an incorporeal or immaterial property, a hybrid concept that gave everyone enormous trouble, both because it was an apparently impossible monster, a kind of conceptual mermaid (immaterial property!) and because, in the context of a discussion about representation (which is, of course, what copyright ultimately concerns), its conceptual parents proved unstable.

  5. Contemporary discussions of property, which drew intermittently upon Locke and Blackstone, treated it as having a double derivation, one from nature, or the common stock, the other from the self, the axiomatic property every man had in his own identity. These two derivations were not symmetrical or entirely distinct. Land, for instance, drawn from the common stock, could be taken possession of by one who applied his labor to it, bestowing upon it a value and a status drawn from his property in himself; but nature wasn't essential in this scheme, nor was anything that could be regarded as common stock, for labor of a different, intellectual, kind, was capable of bringing into being a form of property that owed its being and status entirely to its relation to its human producer. Ultimately, then, property could be said to derive from self-possession and thus metonymically from identity. For reasons I'll get to in a minute, this was a fact too disturbing to be fully acknowledged.

  6. So we confront now two questions. One: if intellectual property is analogous to corporeal property, how does the analogy work? Two: if intellectual property is analogous to the property a self has in its consciousness, how does that analogy work? I shall address these in reverse order.

  7. Everyone seemed to agree that an author's ownership of his text represented a special case of a man's ownership of his thoughts: his work represented his consciousness, his very self, a propriety no one had the right to disturb. Indeed, the debaters commonly spoke of an author's control over his work in terms of the integrity of his name, suggesting that to lose control of the form or publication of one's writings might be tantamount to losing control over one's public identity, the "name" standing not merely for reputation but also for the language in which the authorial self had its being.

  8. But if one is one's consciousness, as first Descartes and then in a different way Locke had suggested, the contents of that consciousness nonetheless occupy a deeply ambiguous proprietary status. One's thoughts are one's own--but they may simultaneously be somebody else's as well, both because all men are endowed with like faculties of perception and powers of reflection and because the perceptible world is common to all. Lord Auchinleck suggested,

    suppose several people well acquainted with this country, should go up to the castle of Edinburgh, and one of them, who liked speaking, should immediately describe all the objects he saw from it, would he acquire a right ever after to that description? And could he, by printing it, create a right not in him before? (Boswell 3)

    The answer is obviously no: it is all too easy to imagine how the taking of such property, its sequestration from general availability, would lead to a failure of public communication, as representation after representation was enclosed.

  9. The reluctance on the part of perpetual copyright's opponents to treat the contents of an individual consciousness as private property may have also to do with the suspicion, audible since Locke and Hume, that individual identity is too fragile a concept to make much depend upon. (I lean here upon Christopher Fox's reading of Locke and the century of debate upon the nature of identity which his analysis of it in the Essay Concerning Human Understanding provoked.) Locke, who begins by defining identity in terms precisely of exclusiveness, unbinds the idea of identity, which he calls "person," from the body and also from the immaterial substance which had, since Aristotle, been thought to assure its integrity and immortality; he distinguishes, that is, among three terms that had been thought for all earthly purposes indistinguishable: person (identity), man (individual body), and substance (presumably soul). Once these three are unbound from one another, one could no longer assume even a numerical correspondence among them; a single man (or body) might contain two persons (or minds), even more (as in the case, say, of a psychotic or even a dreamer). Similarly, there is nothing at least in Locke's theory to prevent one person, or one mind, from occupying, presumably through psychic transmigration or reincarnation, two men, or two bodies, in succession.

  10. Locke having raised these possibilities, they became impossible to disregard: Fox tells us that the pamphlets written for and against such ideas were quite popular, both for their shock value and for their religious and judicial implications: for if a man's body may house more than a single mind, and that man commits a crime, which person within that man ought to be judged, either by earthly judges or by the divine one?

  11. For my purposes what all this means is that at the same time that the nation was worrying about the nature of intellectual property, it was also worrying about the nature of identity: the two debates, I suspect, running concurrently, also reflected one another, the Locke debate infecting the copyright debate with its preoccupations and anxieties and loading its terms. When the participants in the copyright debates spoke of property and its grounding in identity, then, they must have been uneasily aware of the instability of that ground.

  12. Now, as property, copyright was held to be incorporeal because it had to do with the possession not of corporeal things (paper, ink, binding materials) but of an incorporeal right--the right to multiply corporeal things, to publish books. Everyone involved in the debates knew this, or said they knew it, but the idea inspired doubt, and both its defenders and its attackers depended in their analyses of its ontology upon the analogy between incorporeal and corporeal property, so that discussions of the ownership of copyrights tended to become, whether by design or through intellectual haplessness, discussions of the ownership of books, which were the closest thing to the exemplary parcels of real estate that the disputants would have been happiest talking about.

  13. This was a primitive and extremely fertile source of confusion, for copyright didn't really behave very much either like books or like farmland. On the one hand, copyright had to do with material drawn from common stock (language) and appropriated by being mixed with individual labor; on the other hand, the books to which copyright applied occupied no very clear position in the economy; they had no obvious place in any scale of equivalent values.

  14. The debaters stumbled over this difficulty countless times, sometimes with comic pratfalls in mind: there was the joke about the schoolboy who stole an old woman's gingerbread letters, protesting that his theft was no theft, the courts having determined that "lettered Property was common"; there was Catharine Macaulay's lament "that literary merit will not purchase a shoulder of mutton, or prevail with sordid butchers and bakers to abate one farthing in the pound of the exorbitant price which meat and bread at this time bear" (Macaulay 15); and William Warburton's mocking fancy of the consequences of a writer's decision to offer his writings in payment for debt:

    Creditors would ravish from Dramatic Writers their half-formed Tragedies, from Clergymen their pious Discourses. . . . A Moral Essay might go in Discharge of a Debt contracted in a Bagnio. Philosophy, Poetry, Metaphysics, History and Divinity, would be taken in Satisfaction for Stay-Tape, Buckram and Canvas, or Legs of Mutton, Calf's heads, and other Articles, which usually compose a Taylor and Butcher's-Bill. . . . If literary Property consists in the Ideas, the Creditors would have an Interest in all the Ideas of their Debtors. (Warburton 34-35)
  15. The analogy between the verbal or intellectual and the material took the form of deeper puzzles as well. Lord Thurlow declared, "To say that a man has a property in the ideas of a book, and none in the book itself, is as if one should affirm that a man has a property in the colouring of a picture, but none in the canvas on which that colouring is laid" (Pleadings of the Counsel 2-3)--an analogy that is clearly the product of blinding exasperation, as its author, insisting that the incorporeal (thought) is comprehensible only by analogy to the corporeal (paint), proves incapable of distinguishing between irrelevance and nonexistence.

  16. Baron Eyre notes the implications of Thurlow's analogy between the intellectual property a writer has in his book and that which an inventor has in his invention:

    The Baron considered a Book precisely upon the same footing with any other Mechanical Invention. In the case of Mechanic Invention, "Ideas were in a manner embodied, so as to render them tangible and visible; a Book was no more than a Transcript of Ideas; and, whether Ideas were rendered cognizable to any of the senses, by the means of this or that art, of this or that contrivance, was altogether immaterial: Yet every Mechanical Invention was common, whilst a Book was contended to be the object of Exclusive Property! So that Mr. Harrison, after constructing a Time-Piece, at the expence of forty years labour, had no method of securing an exclusive Property in that invention, unless by a grant from the state; yet, if he was in a few hours to write a Pamphlet, describing the properties, the utility and construction of his Time-piece, in such Pamphlet he would have a right secured by Common Law! though the Pamphlet contained exactly the same ideas on Paper, that the Time-piece did in Clock-work Machinery! The cloathing is dissimilar; the Essences cloathed were identically the same." (Pleadings of the Counsel 16)
    This is a more sophisticated attempt to understand (by means of abstracting generalization) the irrelevance of the medium; and yet it too reintroduces the analogical confusions the author has attempted to bracket: are books indeed like watches? Are the verbal representations of a mechanism equivalent to the materially embodied mechanisms themselves? Is a watch merely itself, or is it a representation operating at a higher level of truth than mere words, a non-arbitrary signifier of the same principles that Harrison's hypothetical pamphlet might analyze?
  17. The ostensible use of these analogies and others like them is not to raise questions about the nature of representation but to argue that the ownership of books deserves no more careful or generous protection than that of a mechanical design. Because they have to do with technology rather than poetry, they suggest the irrelevance of individual associations, origins, or ownership: these are representations whose nature is dictated by nature itself, that is, by what is the common--almost Platonic--object of everyone's attention. But copyright itself tended to resist full assimilation to the model of property, and the concern over trade monopoly that is audible in Baron Eyre's remarks tripped up precisely over the issue of exclusivity. For although, not unreasonably, antagonists to unlimited copyright feared that lazy, greedy booksellers would extort high prices for inadequate printings of inadequate editions of essential texts unless they were forced into competition with their peers, those who took seriously the notion that copyright represented the author's property in his works found that it failed to behave like any other kind of property they knew.

  18. If ownership of one's writing is analogous to the ownership of corporeal property, it ought to be subject to the same basic conditions as the ownership of watches or farmland. It ought to be capable of economic exchange, forfeiture, and seizure; and if seized by another it ought, like normal property, to cease to be the property of its original owner. But what would this mean in the case of a written text? Warburton's comic fantasy about paying bills with epics and sonnets seized for debts is ludicrous not just because the butcher he conjures up is unlikely to want the sonnet or recognize in it a value equivalent to that of his brisket but because the idea of losing or forfeiting a text makes so little sense. A purse from which a shilling has been extracted is a purse worth a shilling less; and the dog in Alice's subtraction lesson, after the taking away of its bone, is an angry dog; but what is a mind that has lost possession of its epic? Does a poet's amnesia in this instance compensate the baker for his bread? Unlike a material object, which can exist in only one place at any one time, a text is bound by no such rules of exclusivity; its identity is not compromised by multiplication. A sonnet is no less a sonnet for its simultaneous existence in a thousand memories.

  19. It is the wordliness of writing that makes this absurd notion of forfeiture problematic. Thoughts may be valuable in themselves, but words are meaningless unless communicated, valuable only in publication--yet in publication their propriety is lost. Lord Camden remarked,

    Most certainly every man who thinks, has a right to his thoughts, while they continue HIS; but here the question . . . returns; when does he part with them? When do they become publici juris? While they are in his brain no one indeed can purloin them; but what if he speaks, and lets them fly out in private or public discourse? Will he claim the breath, the air, the words in which his thoughts are clothed? (Pleadings of the Counsel 32)
    Camden's comparison depends upon an unspoken double analogy or ratio: as thoughts are to words so words are to paper (or air). Consciousness is thoughtlessly assimilated to the medium of its transmission, the representation conflated with its object, and the ratio collapses into identification. It is the same thinking as we saw earlier in Thurlow's remarks about the unbacked paint of a picture. The materiality or corporeality that for many of the participants in the debate defined property, and which on some level they knew to be an irrelevance, took its revenge through the irresistibly material logic of analogy. That logic suggested, at least to some of them, that the buyer of a book purchased not just paper and ink but, potentially at least, thoughts that, if he had the means to read and understand them, became his.
  20. What might this mean for the relationship between a writer and a reader? For some of the participants in the debate, it meant little or nothing: the author had merely provided a convenient but nonessential service to his reader, affording him a shortcut to ideas that the reader could, ideally, have arrived at himself. Neither is compromised by this, nor either one significantly changed by the transaction, any more than I am changed if I pass my neighbor a plate of parsnips at dinner. But in the view of others, something rather more disturbing might be happening. A writer gives the reader custody of the children of his brain. The reader is entitled--for how can he be stopped?--to adopt and raise them as his own, regardless of how the author might wish them to be raised. Thus the author, by the fact of publication, loses control over something he had regarded as his.

  21. The question I would like to raise is whether he loses control of himself. Is publication--is allowing another access to one's thoughts--an implicit alienation or forfeiture of identity? The tradition of regarding the mind as a text (sometimes blank, sometimes inscribed) is one context in which the question might be considered. One thinks in particular of Socrates's Thamus in the Phaedrus, who tells the god who has offered him the gift of writing as a supplement to memory and an aid to wisdom that writing is a false kind of memory, not a true, and that men who rely on it will become forgetful of the true texts of their souls. One thinks too of Locke's image of the mind at its origin as "white Paper, void of all Characters," waiting to be inscribed by perception and reflection.

  22. So if the mind is a potential text, what happens in literal writing, or literal reading? How does the immaterial text of self stand in relation to the material text of the book? What happens when the two sorts confront one another? This is what Lord Monboddo said about the metamorphosis back and forth between incorporeal and corporeal:

    If I purchase a book, I may use it for my instruction or amusement, or I may employ the paper or binding of it as I think proper, and so far I may be said to have the property of it. But, I cannot reprint it, because that use belongs to the author or his assigney, and so far he is proprietor. . . . Ideas . . . are not by their nature a subject of property. For property, though it be an incorporeal right, it must have for its subject some corporeal thing: But, supposing they were capable of property, I allow every man who purchases a book to appropriate the ideas of it to himself as much as he can, and the words too, if his memory be good enough. I think I could go farther without hurting my argument, and admit that he may carry those ideas in his mind, and those words in his memory, to a printing press, and get them thrown off. Such a man I would call a plagiary, but not the pirate of a book; nor do I think that he would fall under the sanction of the statute, which only forbids him to use the book for a press-copy, to transfer the author's words from paper to paper, by the mere mechanical operation of printing, without any labour of the mind; but does not prohibit him to exercise either his memory or judgment upon it. (Boswell 9-10)
    These are mere speculations as far as Monboddo is concerned; he rejects their premise, that thoughts can be a subject of property; but one can see, in these musings, with their implications about reading and mental inscription, why he would resist the notion of proprietary thoughts. The legal problem here seems scarcely to matter: what does matter, for Monboddo, is that once an idea is in someone's head, it is impossible to distinguish its origin: if thoughts are the property of the one who thinks them, they are all equally owned. The security of their ownership, however, suggests a destabilization of their thinker's self-possession. For booksellers multiply copies not of books alone but also of readers, or perhaps I should say authors, for if the readers are good readers, they will become copies of the author. The transfer of ideas that occurs in reading effects an identification (however ephemeral) between author and reader. It suggests just the sort of intellectual vampirism or spiritual transmigration to which Locke had seemed to open the way. It undoes the identity upon which property--even this apparently incorporeal property--had seemed to rest. This, I suspect, was the real scandal around which the copyright debates made so much frantic noise.
  23. One last word. I said a minute ago that the point of all these odd analogies was not to raise questions about the nature of representation. Nonetheless, these questions do get raised. The double nature of copyright, that incorporeal property, itself seems to imply an internally analogical relation--between the corporeal and the incorporeal, the material and the immaterial. Uneasiness about copyright, I believe, expressed an uneasiness about that relation and hence too (as I've said before) an uneasiness about the relation between the body and consciousness. Analogy is embodiment--or perhaps more precisely, reembodiment--as is reading, as is representation, and as, too, in their own peculiar ways, are the writing and the multiplying of books.

    Works Cited

    Boswell, James. The Decision of the Court of Session upon the Question of Literary Property; in the Cause of John Hinton of London, Bookseller, Pursuer; Against Alexander Donaldson and James Wood, Booksellers in Edinburgh, and James Meurose Bookseller in Kilmarnock, Defenders. Edinburgh, 1774.


    Fox, Christopher. Locke and the Scriblerians: Identity and Consciousness in Early Eighteenth-Century Britain. Berkeley: University of California Press, 1988.


    Locke, John. An Essay concerning Human Understanding. Ed. Peter H. Nidditch. Oxford: The Clarendon Press, 1975.


    Macaulay, Catharine. A Modest Plea for the Property of Copyright. London, 1774.


    Patterson, Lyman Ray. Copyright in Historical Perspective. Nashville: Vanderbilt University Press, 1968.


    Plato. The Collected Dialogues. Ed. Edith Hamilton and Huntington Cairns. Princeton: Princeton University Press, 1961.


    Pleadings of the Counsel Before the House of Lords in the Great Cause concerning Literary Property. London, n.d.


    Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard University Press, 1993.


    Warburton, William. An Enquiry into the Nature and Origin of Literary Property. London, 1762.


    Woodmansee, Martha. The Author, Art, and the Market: Rereading the History of Aesthetics. New York: Columbia University Press, 1994.