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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

15. Metaphors of Intellectual Property

William St Clair

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  • 1 I should like to record my thanks to Lionel Bently, Ronan Deazley, Paulina Kewes, Irmgard Maassen, (...)

1Note portant sur l’auteur1

  • 2 An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or (...)

2In this essay, I discuss the main metaphors within which intellectual property has historically been conceptualised, presented, and debated in England; in the United Kingdom of Great Britain (1707); the United Kingdom of Great Britain and Ireland (1801); and the United Kingdom of Great Britain and Northern Ireland (1922). The law and practice of intellectual property were different in Scotland and Ireland before they became constituent parts of the United Kingdom, and practice in Scotland continued to differ from practice in England for around a century after a statutory copyright regime for the whole of the United Kingdom of Great Britain was established by the British Act of Queen Anne in 1710.2

3Since we now have over five hundred years of experience, we can discern the trajectories, the gradual shifts, and the sharp turning points. We can appreciate the development in the ways in which intellectual property has been discussed that have brought us to the discursive conjuncture at which we find ourselves today. We are thereby enabled, I suggest, to approach the policy choices that we face today with a fuller, more open, and more critical understanding.

  • 3 After 1900 the uniqueness of print as a medium able to carry complex texts across time and distanc (...)

4My remarks refer mainly to printed books, the main media by which complex forms of knowledge were constituted and disseminated for the first four hundred years.3 But they apply also to engravings and other forms of reproducible pictures inscribed in, and carried by, the materiality of paper and ink or electronic media, over which, incidentally, the intellectual property regime, both in law and in practice, has historically been different. To avoid unnecessary clutter, I will use ’books’ to include all kinds of printed matter, and ’reading’ to include all the many ways of engaging with, ’consuming’, the verbal and visual texts.

  • 4 Mark Rose, ’Copyright and Its Metaphors’, UCLA Law Review, 50 (2002), 1-16. Rose makes many of the (...)

5I leave aside paternity, brain child, fruits of the brain, creativity, and other metaphors that have been mainly deployed in discussing authorship, on which Mark Rose has written, and who has come to many of the same conclusions as I offer here.4 I refer only incidentally to external and internal controls on the textual content of print with which intellectual property regimes have historically been closely associated. And, although I use the present-day vocabulary of ’intellectual property’, rather than the words used in the past (privilege, charter, letters patent, license, literary property, and so on) I do not wish to imply that ’intellectual property’ is necessarily the best way of conceptualising or analysing the practice either as it was operated in the past or now. Instead, I suggest, we should regard ’intellectual property’ as the metaphor that happens to be currently dominant, and be alert to its historical genesis, to its rhetorical tendencies, and to its strengths and limitations as an instrument of analysis.

*****

6I begin with three points that have not always, in my experience, been given sufficient attention.

  • 5 Discussed, and the effects of the regime evaluated, with quantification, by William St Clair, The (...)
  • 6 Examples of intellectual property in titles that had passed into the public domain continuing info (...)

7First, we cannot recover the history of intellectual property from the history of the law of intellectual property. Many intellectual property practices have been operated for long periods in contravention of the law. For example, we find English, although not Scottish, publishers conducting their businesses as if perpetual intellectual property was lawful long after the 1710 statute had declared unambiguously that copyright existed for fourteen years ’and no longer’.5 The English publishers managed to continue the illegal practices for a time even after the 1774 judicial decision of the House of Lords (acting as supreme court for civil cases in Great Britain) had formally confirmed that the law was what it was plainly stated to be in the statute, and the gradual ending of the practice was due more to economic forces than to legal challenge.6

  • 7 The opening words of the Fine Arts Copyright Act 1862, 25 & 26 Vict., c.63, are reprinted in Regin (...)
  • 8 For preemption rights, a classic feature of cartels, in the historic British book industry see St (...)

8We also find examples of intellectual property regimes operating without any basis in law. The 1862 statute on artistic copyright, for example, begins with the words ’Whereas by Law as now established, the Authors of Paintings, Drawings and Photographs have no Copyright in such their works’, but the record shows that, in practice, for at least half a century before the passing of that act, artists had been able to exercise a de facto copyright, and to obtain large sums from engravers and print sellers in return for extra-statutory exclusive rights to make and sell prints of their paintings.7 And there were other business practices, such as preemption rights when intellectual property rights were sold at closed sales among groups of members of the industry, which although not formally part of any copyright regime, reinforced its main economic features and made it harder for outsiders to exercise their statutory and other legal rights.8

  • 9 Discussed in St Clair, chapter 4 and elsewhere.
  • 10 A striking example is the clampdown on abridgements, anthologies, and adaptations of existing prin (...)

9Many historic intellectual property practices were not set out in any publicly accessible form, and are only known from mentions in private documents, for example, denying opportunities to quote.9 And there were other intellectual property practices, including some which determined which texts were made available to large constituencies of readers in England for over two hundred years, whose existence is only known from observed economic behaviour recovered from the archival record.10

10Secondly, histories of the law of intellectual property, even if we were to include the illegal and extra-legal components of the regimes, cannot take us to the real-world consequences. Without information from outside, we can say little about the nature of the printed books that were produced, prohibited, or discouraged by the regimes. Nor, without information from outside, can we take a view, other than in the most general and speculative terms, on the effects of the operation of the regimes on the nature of the texts, or on incentives, production, prices, access, or timing of access. Histories of the law cannot take us to reading, to the construction and diffusion of knowledge, the competition for the allegiance of minds, the rise and fall of ideas, or to the mental states that resulted from the reading (and viewing) of the texts that were historically made available as consequences of the regimes.

  • 11 Examples, with quantification, of the effects on prices, production, access, and so on, of the 177 (...)

11Thirdly, we cannot derive the real-world consequences of intellectual property regimes from histories of public, political, and judicial arguments about intellectual property. Only if we collect and analyse information from outside can we evaluate the extent to which the arguments offered in debate may have achieved their rhetorical purpose, and changes in opinion, law, practice, economic and business behaviour, and ultimately reading and mentalities, may have occurred as a result.11

  • 12 Lionel Bently and Brad Sherman, Intellectual Property Law, 2nd edn (Oxford: Oxford University Pres (...)

12If we regard texts, books, and reading as a literary system, within a wider cultural system, most discussions of the history of intellectual property have, I would say, been concentrated on one of the factors that governed the inputs to the system (law) to the neglect of the others (practice). Less attention has been given to the outputs of the system, (the nature, prices, quantities, and sales of the printed texts produced, prohibited or discouraged), or to the outcomes (the mental states that resulted from the reading of the texts made available under the regimes). Indeed, of the three main currently offered justifications for intellectual property – natural rights, a public expression of gratitude to authors, and incentives to useful innovation, only the third admits consequences as a legitimate element in the debate.12

  • 13 Quoted from the Copyright Act 1842, 5 & 6 Vict., c.45, by John Shortt, The Law Relating to Works o (...)

13This lack of attention to – or rather historical withdrawal of attention from – the consequences of intellectual property regimes, and attempts to suggest that they are irrelevant, or need not be considered, has occurred despite the fact that, since the British statutory regime was established in 1710, every single statute has been publicly presented and justified by claims about the consequences it was intended to bring about. For example, in the eighteenth century, we have acts ’for the encouragement of learning’, ’for the encouragement of the arts of designing, engraving and etching’, ’for the advancement of useful learning and other purposes of education’, and so on. Amending statutes refer back to earlier statutes that make claims about intended consequences. The long-lived 1842 Copyright Act, which repealed the 1710 Statute of Anne, was more explicit and more restrictive in its stated objectives than its predecessor, being described in the ambit as an act ’to afford greater encouragement to the production of literary works of lasting benefit to the world’.13

*****

14It would be possible to arrange the metaphors in a rough chronological parade, but they merged, co-existed, and overlapped in time. Most continued to be deployed and retained rhetorical power long after other ways of thinking had apparently taken their place or had overlaid them, and some ancient metaphors are still frequently deployed today. I arrange them in accordance with the primary ideas with which the metaphorical comparison is made – although, as with all language, they too were often metaphors, sometimes dead. We should not expect the metaphors to be internally consistent, although the more they are, the greater their potential rhetorical power.

  • 14 A point also made by Rose, p. 3: ’Metaphors are not just ornamental; they structure the way we thi (...)
  • 15 A point also made by Rose, p. 16: ’We cannot simply escape from these metaphors because we cannot (...)

15Metaphorical conceptualisations should not, in my view, be regarded as mere ornamental embellishments to other ways of thinking that some may regard as more securely founded, or as intellectually more coherent.14 Metaphors have been intrinsic to the way in which intellectual property has historically been analysed, understood, presented, and enforced not only by authors, publishers, pamphleteers, and other participants in the book industry, but by governments, parliaments, lawyers, judges, and courts. The history of decision-making too is replete with metaphors, often mixed, that were deployed alongside, and intermixed with, arguments based on legal concepts. They are part of the history of the nexus of ideas that have historically surrounded and shaped both law and practice through to the present day, and may have been at least as influential on the real-world course of events as legal theory or jurisprudence.15

Commonwealth

16The first set of ideas I wish to discuss is the notion of a ’commonwealth’, a well-run polity in which the interests of citizens are reconciled both as individuals and as members of participating institutions, and who together contribute to the well-being – the common weal – of the whole. During the early centuries of intellectual property, notions of a well-run commonwealth were applied to the intellectual and economic as well as to the political and religious domains. One of the main school teaching texts that was sold for a hundred years after 1600 was called Wits Commonwealth – ’wit’ here meaning knowledge.

  • 16 Quoted in St Clair, p. 457 from A. Luders et al, Statutes of the Realm (1810-28), iii, p. 456.
  • 17 W.W. Greg, A Companion to Arber (Oxford: Clarendon Press, 1967), p. 185.

17During that time, much economic production was formally assigned to chartered guilds that were established as formal monopolies. But, as part of the claim that ’the commonwealth’promoted and protected the interests of all citizens, these monopolies were normally closely regulated, both internally and externally. And that regulation applied to the monopoly that is today called intellectual property. Price controls, and arrangements for enforcement, penalties, and remedies against excessive prices, were intrinsic to the institutions of intellectual property, both formally in law and in practice, from its earliest days. An English statute of 1534, for example, was devoted to the control of book prices, with arrangements for complaints, redress, and penalties.16 And action to secure compliance was taken by the state as well as by individuals and corporations. For example the English Government in 1632, considering a dispute between the rival book industries of London and Cambridge, threatened to take book pricing into its direct control, as internal price regulation was not working. The Government required, as part of allowing the privilege to continue, ’first that all bookes printed and to bee printed shoulde be sould at reasonable and fitt prizes otherwise the forme of the Statute to be put in execution. wch is for setting a rate as which euerie booke shoulde bee solde for that the prizes of bookes in respect of the many privilidges are of late times extreamely raised’.17

  • 18 Summarised in St Clair, p. 457. An example of enforcement in William A. Jackson, Records of the Co (...)

18Price controls, which are seldom mentioned in modern accounts of the history of copyright, were actively enforced in the early centuries, remained on the British statute book until 1739, and were taken into the law of the newly independent United States in 1787.18 Excessive book prices were commonly described as ’abuses’, the same word as was commonly used for infringements both of the monopoly rights to copy and of the controls on textual content.

  • 19 There are many examples in [Michael Sparke], Scintilla, or A light broken into darke warehouses (1 (...)

19Many of the numerous recorded complaints about prices came from within the industry and concerned the state-conferred class monopolies, ’patents’, to publish English language bibles, almanacs, school books, and law books. It was simple for the state and for industry insiders, by calculating the margin between the manufacturing costs and the prices set by producers, to measure the degree of price exploitation, as is done in modern price control and monopoly regulatory systems. But the record shows that participants also understood the monopoly intrinsic to copyright as such, and were able, for example, to calculate the net present financial value of the economic rent available to be taken from a future stream of income – a calculation which both the state and the industry had to make when monopoly rights were being franchised, and which members of the industry performed regularly and frequently, many times in every year until 1774 and later, whenever the monopoly copying and selling rights in other texts were inherited, sold, or otherwise transferred, second hand, between members participating in the pre-emption conjurations.19

  • 20 See examples in Scintilla.
  • 21 A Transcript of the Registers of the Company of Stationers of London 1554-1640, 5 vols, ed. by E. (...)
  • 22 Samuel Hartlib, quoted in Cambridge History of the Book in Britain (Cambridge: Cambridge Universit (...)

20The effects of intellectual property regimes on the consumer interest were understood, discussed, and in sometimes measured.20 In 1614, for example, in a complaint about the excessive prices charged by patentees, the excluded members of the industry noted that ’his Majesties Subjects in general are abused by their exactions’.21 Another member of the industry, in declaring in 1641, that monopolies ’robbed the commonwealth’, called for international as well as local free trade in all the texts composed, compiled, or translated long ago, including English-language bibles. Another writer declared that it was ’a great injury that stationers have copies for ever. It should suffice that they should enjoy them for 5, 10, 15 years. Otherwise they never reprint them and by this means many good books are suppressed or perish altogether’ – an observation about one damaging effect of long or perpetual intellectual property – the dog-in-the-manger effect – which is shown by the historical record to have frequently occurred. 22

  • 23 Quoted by Richmond P. Bond, ’The Pirate and the Tatler’, The Library, 18, 4 (1963), 257-74. The ph (...)

21In the early eighteenth century, before the 1710 act came into force, Henry Hills, who printed a range of old and new texts (mainly publicly delivered sermons) at cheap prices, so infuriated his colleagues by printing the words ’for the benefit of the poor’ on his title pages that one declared that he should be whipped through the streets of London with a bundle of his cheap books bound to his back, and a notice hung round his neck ’for the benefit of the poor’.23 Whether the London crowds would have appreciated the sarcasm we can only guess. It has historically always been hard for the book industry to persuade its customers, or the public, that high prices are for their own benefit. This has been especially the case when the texts were composed long before the copying occurred, the authors were long dead, the prices at which the books were monopolistically sold were far above the manufacturing cost, and there were firms keen to supply them more cheaply.

22Monopoly-and-regulation, we can say in summary, was the central official discourse, and the central public justification, of the law, institutions, and practices of intellectual property during the first two and a half centuries of its existence. This political economy way of conceptualising and understanding intellectual property, which regards its effects on texts, production, prices, access, and so on, as its main purpose, long predates the language of private property rights whose rhetorical tendency is to present effects and consequences as incidental, and to try to exclude them from a legitimate place in the argument.

  • 24 Quoted by A.S. Collins, Authorship in the Days of Johnson (London: Holden, 1927), p. 72, from a pa (...)
  • 25 For example, Thomas Edward Scrutton, The Laws of Copyright (London: 1883), p. 8.

23The political economy language of monopoly-and-regulation-in-the-public-interest continued to be heard after the private property metaphor was first formally institutionalised (with accompanying price controls) in the statute of 1710. In a pamphlet of 1735, for example, when the public domain of out of copyright texts established by the act of 1710 ought already to have come into being, after the expiry of the transitional provisions, attempts to thwart its intended effects were described as ’a perpetual Monopoly, a Thing deservedly Odious in the Eye of the Law, a Discouragement to Leaning, no Benefit to Authors, but a general Tax on the Publick’.24 And although private property rights gradually became the dominant metaphor, the previous claim that intellectual property had been established to advance the wider aims of the polity as a whole was not entirely pushed aside. Late in the nineteenth century, for example, law professionals still described copyright as a ’privilege designed to secure the aims of the community’.25

Metaphors of the body

24The second range of ideas I wish to discuss is closely related to notions of the well-ordered commonwealth, the metaphor of the polity as a human body.

  • 26 See, especially, David George Hale, The Body Politic: A Political Metaphor in Renaissance English (...)
  • 27 Richard Atkyns, Original and Growth of Printing (London: Printed by John Streater, for the Author, (...)

25The commonwealth, when conceptualised as a body, had a ’head’, normally the monarch, who in early modern political/ecclesiastical states such as England, claimed to derive his or her authority from the Christian god.26 Most of the formal documents declare that the power was granted down from the ’sacred’ monarch, and therefore that they too had divine as well as political legitimacy. The monarch was said to be the giver and ultimate owner of all land and of all industries, including the book industry. As one pamphleteer wrote in 1664, ’That Printing belongs to your Majesty, in Your publique and private Capacity, as Supream Magistrate, and as Proprietor I do with all boldness affirm’27

  • 28 Example in Greg, p. 202.
  • 29 Arber, i, p. 587.
  • 30 Examples from The Importance of the Liberty of the Press (1748), p. 8.
  • 31 Discussed by Lisa Maruca, The Work of Print, Authorship and the English Text Trades 1660-1760 (Sea (...)

26In the bodily commonwealth the different classes of society are regarded as organs or members – most are feet. Intellectual property owners, ’patentees’, are hands. The state is a body politic, but so are the guilds, other bodies corporate, ’corporations’, within the larger body.28 The bodily metaphor could be used to support intellectual property institutions, noting, for example the risks that, without them, worthwhile works would be ’strangled in the womb’ or ’never conceived at all’.29 The laws and customs that governed the print industry, including intellectual property, could be presented as performing a range of bodily functions in the commonwealth, for example, vivifying (male), giving birth (female), and nursing (female).30 The printing press itself was often imagined in gendered terms, with its different parts metaphored on parts of the body, tongues, shoulders, male block, female block. Indeed the manuals for printers almost say that works of print are born as result of the coupling of human bodies with the machine. One writer declared that when there was disorder in the commonwealth the physical ’tumults’ were the masculine manifestation, the printing and dispersing of the books that led to the tumults were the feminine, reflecting the fact that the women and girls who played a large part in book manufacture and distribution shared the responsibility.31

  • 32 Reasons humbly offered for the Liberty of Unlicens’d Printing . . . In a Letter from a Gentleman i (...)
  • 33 Ibid.
  • 34 Quoted by Catherine Seville, Literary Copyright Reform in Early Victorian England (Cambridge: Camb (...)

27But mostly the bodily metaphor was deployed in support of restrictions at each stage of publication. The burning of books, for example, was compared with legal infanticide. ’[In the past] Books were as freely admitted into the World as any other birth; the issue of the Brain was no more stifled than the issue of the womb: No envious Juncto [Junta] sate cross-legg’d over the Nativity of any Man’s Intellectual Off-spring; but if it is proved a Monster, who denies but that it was justly burnt?’32 Even the practice of making abridgements, long a point of contestation within the industry, was presented in bodily terms. To abridge was to ’rake through the Entrails of many a good old Author, with a Violation worse than any could be offered to his Tomb’.33 As late as 1839, the author Thomas Hood, petitioning Parliament in favour of a bill to introduce a longer copyright, declared that ’when your petitioner shall be dead and buried, he might with as much propriety and decency have his body snatched as his literary remains’.34

  • 35 Rose, p. 10.
  • 36 Roger L’Estrange, Considerations and Proposals in Order to the Regulation of the Press (1663), p. (...)
  • 37 Quoted by Hale, p. 74.

28The rhetorical tendency of the bodily metaphor is to make political and commercial practices appear ’natural’, familiar, and therefore more understandable and more readily acceptable. As Rose noted, ’the issue is not truth so much as persuasion. A persuasive solution is one that works because it tells us what we already know’.35 The rhetorical tendency was also to require that argument should be conducted within the limitations of the metaphor, and it usually was. Those who disliked ecclesiastical censorship, for example, might not dare to criticise censorship face on, but they could call the current bishops ’rotten members’.36 Production and pricing decisions, are, by this rhetoric, presented not as the actions of economic agents, but as matters already settled by ’nature’. Within the bodily metaphor, to attempt to negotiate is therefore to rebel. As one author wrote of the patentees, ’[t]he monarch as head gives power to the hand, the hand oppresseth the foot, the foot riseth up against the head’.37

  • 38 Discussed in St Clair, especially pp. 11-2, 109-10 and 308-12.
  • 39 Atkyns, p. Bii.
  • 40 Ibid., p. C7.

29Throughout the print era there has been an influential constituency that is hostile to the reading of books as such, mainly on the grounds that if uneducated persons are introduced to new ideas, they are liable to become discontented with the role to which they are assigned by society.38 In its many attempts to control reading by limiting the size of the printing industry and bringing it under state control, it was to the metaphors of the body that the early modern political/ecclesiastical state turned for its justifications and its metaphors. ’Printing is like a good Dish of Meat, which moderately eaten of, turns to the Nourishment and health of the Body; but immoderately, to Surfeits and Sicknesses’.39 And since excessive reading leads to ’disorder’ both in the political and the individual body, it causes more deaths than guns. ’Twenty dye of Surfeits, for one that is starved for want of Meat’.40

  • 41 Richard S. Tompson, ’Scottish Judges and the Birth of British Copyright’, The Juridical Review, 37 (...)
  • 42 Quoted from the original transcript by Greg, p. 144.

30Rameses’s Library at Thebes in Egypt is said to have been inscribed with the words ’medicine for the soul’. The same thought can still be read above the library in the monastery on Patmos. That aspect of the bodily metaphor is not only ancient but rhetorically powerful and enduring. As one author wrote in 1624, a stationer was entrusted to supply the needs of the soul, and, like an apothecary who supplied the needs of the body, he was under an obligation not to sell any thing harmful.41 The point had been made in almost exactly the same words in a speech to Parliament forty years earlier. Just as inspectors burned defective medicaments, this speaker advised his colleagues, let us take care in dealing with books ’because the poticaryes drugs do but poison ye body but the prynyers druggs do, poyson ye soule’.42

  • 43 James Raven, The Business of Books 1450-1850 (New Haven: Yale University Press, 2007), p. 62, quot (...)
  • 44 Arber, i, p. 474.
  • 45 Arber, i, p. xxvii. From his comprehensive work on the Stationers’ Company registers, court record (...)
  • 46 Examples in Arber, ii, pp. 772, 778-9.
  • 47 Quoted by Jody Greene, p. 28.

31Metaphors of the bodily commonwealth imply that ’disorder’ in one part of the body may affect the health of the whole.43 In a royal decree of 1576 printed texts unwelcome to the English government were ’euill and corrupt limmes, which for lacke of speedie remedie may infect more of the body’.44 Unauthorised texts were ’pestiferous’ or ’pestilential’, spreading ’infection’. ’Disorder’, a word that was used interchangeably with ’abuse’, included all texts that offended against the health of the body politic, there being little distinction in the use of either word between intellectual property disorder and textual disorder.45 Sometimes the persons who infringed copyright were themselves called ’disordered’.46 And often, in this epidemiological metaphor of the literary system, the sources of the plagues were conceived of as ’vermin’, hard to catch, and sometimes able to spread diseases invisibly through the air. In the words of Roger L’Estrange the official English state censor at the end of the seventeenth century, disorderly books ’lie lurking in the dark, like poisonous serpents, stinging what falls within their reach, and blowing about their venom’.47

  • 48 The London Printers Lamentation (London, 1660), p. 4.
  • 49 Ibid., p. 3.
  • 50 An example from 1720 of a printer being judicially put to death for a publishing offence in St Cla (...)

32The bodily metaphor encourages metaphors of medical intervention. For example, the commonwealth could not thrive ’so long as such horrid Monstrosities and gibbous excrescences are suffered to remain and tumour in that disorderly and confused body’.48 Or ’a little wound, or contusion neglected, will soon mortifie and corrupt itself to an immedicable Gangraen’.49 And, in accordance with the metaphor, drastic action was often in fact taken. William Tyndale, whose translation of the western bible into English published offshore in the Netherlands, was condemned by the then English monarch as ’pestilential’, and Tyndale was in due course judicially put to death by burning. Nor should we think of this as an aberration. There are numerous examples of members of the printed book industry being judicially put to death, often by burning, or being judicially dismembered or facially disfigured, for publishing offences – practices that, in the case of printed texts that challenged the legitimacy of the government, continued even after the 1710 statute.50

  • 51 Discussed with particular reference to reading by James Simpson, Burning to Read (Cambridge, MA: H (...)
  • 52 Quoted from Patriarchia (1660) by Catherine Gallagher, Nobody’s Story (Berkeley: University of Cal (...)

33Many political and ecclesiastical leaders, including Sir Thomas More, not only defended but occasionally relished the practice of burning the authors and translators, as well as the books, of which they disapproved, as a means of ridding the body of ’poison’.51 And again this should not be regarded as an aberration. Part of the justificatory superstructure of the rights of monarchs, as set out, for example, by Sir Robert Filmer, was that the monarch had absolute sovereignty over the bodies of his or her subjects, and had a legal right to ’sell, castrate, or use their persons as he pleases’.52

  • 53 George Chandler [a high ranking churchman], An Introductory Lecture delivered at the Commencement (...)
  • 54 For the cheap editions of Don Juan that poured through a gap in the intellectual property regime s (...)
  • 55 A Course of Lectures to Young Men ... Delivered in Glasgow, by Ministers of Various Denominations (...)
  • 56 St Clair, p. 334.
  • 57 Joel Hawes, Lectures to Young Men on the Formation of Character ... with an Additional Lecture on (...)

34In the nineteenth century, we still frequently find the bodily poison metaphor employed against low book prices as such, often by churchmen, who, like their predecessors, feared that widening access to reading would affect the competition for the allegiance of minds in which they were engaged. As one wrote: ’An appetite for information being created, it required to be satisfied, and if not supplied with wholesome food, was sure to feed on offal and poison’.53 When, by a quirk in the law, Byron’s long epic satire Don Juan became easily available in vast quantities at cheap prices, lawyers and churchmen replayed the ancient metaphors.54 ’The blast of the desert, at once breathing pestilence into the hearts, and scorching with a fatal death-blight, the minds of myriads’, wrote one.55 ’Fatal, unutterably fatal has been the influence of [...] Byron to many thousands of youthful readers’.56 Another writer noted that ’under seemingly playful covering are hidden words more poisonous than the tongues of serpents’. ’ ’Young people should understand that to touch his volumes is like embracing a beautiful woman infected with the plague’. ’Books contain a deadly and secret poison’, warned the churchman, Joel Hawes; ’[m]any a young man has been destroyed by reading a single volume’ – although evidently not Hawes himself.57

35The bodily health and sickness metaphor, which appears to be one of the most ancient and most culturally fixed, turns out to have historically been adapted to the dominant public health concerns at the times when it was deployed. In the early modern period ideas derived from reading are presented as infection spreading plagues silently through the air. By Victorian times, the comparison was with female prostitutes and venereal disease.

  • 58 Tompson, p. 34.
  • 59 Arguments Relating to a Restraint upon the Press ... in a Letter to a Bencher from a Young Gentlem (...)

36After the act of 1710, although the metaphors favoured by the early modern theocratic state withered away, they are still occasionally heard. In the debates of 1774, for example, the newly invented ’literary property’ was described as ’sacred’.58 Meanwhile the bodily metaphor that had been invented to make the theocratic state appear familiar, continued independently. When, for example, as was quickly recognised, the private property metaphor collided with the wider political discourse of ’property’ and ’liberty’ as set out by Locke and others, it was to the bodily metaphors that they returned. As one writer argued: ’If a Man, for instance, writes a Book, or Sheet of Paper, with as much labour and Pains as one can imagine an Author to take, and he may not be allowed to print and publish it, for his own profit, without an Imprimatur, why then the Man’s Property is invaded?’ The answer was that an author had no more right to sell whatever he wrote than a butcher had a right to sell rotten meat, a vintner to adulterate his wines, or an apothecary to put on sale medicines that had not been prescribed by licensed medical doctors.59

37One feature of the body metaphor continues strongly in our own day. The alliance between the printed book industry and the pharmaceutical industry can be traced back to the sixteenth century. The two industries shared – and share – many economic characteristics: both were regulated; centralised in their production; and they shared distribution networks and retail outlets. They also employed the same rhetorics and metaphors, a tradition that continues. In current debates, the pharmaceutical industry, like the word and image text copying industries, aims to keep intellectual property conceptualised as a private property right that should be enforced by the state irrespective of its effects rather than as an instrument of public policy whose consequential benefits and disbenefits can be evaluated not only clinically but in political economy terms of incentives, prices, access, timing of access, and real-world outcomes.

Disguise

  • 60 The main scholarly works on the historical genesis and development of notions of plagiarism are th (...)
  • 61 Robert Greene, Groatsworth of Wit (London, 1592).
  • 62 Sir Thomas Browne, ’To plume ourselves with others’ feathers’, quoted by Christopher Ricks in Kewe (...)

38Metaphors of the body were frequently applied to what is now called plagiarism.60 Robert Greene described his younger contemporary Shakespeare as ’an upstart crow beautified with our feathers’.61 It was a double trope, feathers being associated not only with hats that could give false impression of a man’s status, but with quill pens.62 And indeed Shakespeare was, in modern terms a plagiarist on a vast scale, whole passages of Antony and Cleopatra, to take just one example, being line by line versifications of prose historical works on which he drew.

  • 63 Arber, i, p. 101.
  • 64 Greg, pp. 73, 123; London Printers Lamentation, p. 8.
  • 65 Quoted by Tompson, p. 32.

39And practices that would later be conceptualised as infringements of copyright, were seen as deception. In 1559, for example, a member of the industry was fined twenty pence ’for pryntinge of halfe a Reame of ballettes [ballads] of a nother mans Copy by waye of Desceate’.63 Or as disguise. For example, ’under colour of their patents’ (1585), ’under colour of the former impression’ (1626), ’by colour of an unlawful and enforced entry in the Stationers’ register’.64 I have not been able to discover where this metaphor originated. Maybe from heraldry or from ships flying false colours? But it held its power, and it occurs in the Bill of Rights that forms part of the Constitution of the United States. But the disguise metaphor too could be rhetorically turned. Lord Thurlow noted in 1774 that the book industry had until recently been unconcerned with the financial interests of authors, and only introduced them ’to give a colourful face to their monopoly’, an observation that is validated by the historical record.65

  • 66 Quoted by D. Hunter, ’Copyright Protection for Engravings and Maps in Eighteenth-Century Britain’, (...)

40A variation was the metaphor of counterfeit. A copy of a piece of printed material made without the permission of the first publisher were described as ’base’ or ’false’, presumably on the analogy of forgery or fake coins, even although no element of deception had to be present. The metaphor was employed with success by William Hogarth and his colleagues when they promoted a bill that prevented print-sellers from having their engravings copied by others. The copiest, they argued to parliament, ’does not indeed steal the very Paper, (which if he did, tho’ it is of no great a Value, he knows he should suffer for it) he steals from him every Thing that made that Paper valuable, and reaps an Advantage which he has no more Right to than He, who counterfeits a Note of Hand, has to the Money he receives by it’.66

Gardens

  • 67 A charge also made against the copyright infringers in the early eighteenth century. See Bond, ’Th (...)

41Another common set of metaphors came from horticulture, agriculture, and apiculture. An anthology is, by etymological definition a selection of flowers, and the words used for printed collections of selections from previously printed texts maintained ancient associations with gardens – garland, arbour, bower, garnish. Printed collections were also presented as honey sucked from the sweetest flowers, brought together to form a literary equivalent of the ideal commonwealth maintained by bees in a hive with a queen bee as its head. But these metaphors too were easy to reverse. Authors or booksellers who made reputations or money by appropriating other people’s words were drones.67 And so were patentees with their mysterious business practices.

  • 68 Quoted by Cyprian Blagden, The Stationers’ Company: A History (London: Allen and Unwin, 1960), p. (...)

[...] those Drones, that fly about in mists
Divielish Projectors, damn’d Monopolists68

  • 69 A Letter to the Society of Booksellers (1738), p. 44.
  • 70 Arber, i, pp. 586-7.

42Publishers too were metaphored as gardeners, whose task was to cultivate flowers but who, in practice, opponents declared, prevented writings from reaching readers, (’like flowers that die for lack of being refreshed and watered’). The industry’s business practices, that author continued, caused them to ’miscarry’, a bodily metaphor.69 It was to similar metaphors that the Stationers’ Company appealed in one of its attempts to justify the industry’s monopoly privileges. Copyright, they declared in a deposition to the government, was ’a thing many wayes beneficiall to the state, and different in nature from the engrossing or Monopolizing some other Commodities into the hands of the few’. Unless the size of the industry was restricted and controlled, it would become ’like a feeld overpestred with too much stock, must needs grow indigent, and indigence must needs make it run into trespasses, and break into divers unlawful shifts; as Cattle use to do, when their pasture begins wholly to fail’.70

  • 71 ’Epistle’ in L’Estrange.
  • 72 Hills, p. 1.
  • 73 Atkyns, p. Bii.

43Gardens were normally presented as sanctuaries of peace but they were also bases from which swarms of insects escaped to spread plagues. Without controls on the printing presses, the monarch might be ’stung to death by the tongues of tale-bearers’.71 Birds too could spread a plague. The commonwealth can be a ’cage of unclean birds’.72 And they could fly out of gardens. As one writer wrote, bringing together a range of related metaphorical ideas, the human tongue, although ’but a little Member, can set the course of Nature on Fire, how much more the Quill, which is of a flying Nature in it self; and so Spiritual, that it is in all Places at the same time; and so Powerful, when it is cunningly handled, that it is the Peoples Deity’.73

Property

  • 74 For example, ’such Person to whom such Entry is made, is, and always hath been reputed and taken t (...)
  • 75 An example in Greg, p. 35.
  • 76 The phrase used in one case before the Stationers’ Court; Jackson, p. 2.

44Let me now turn to metaphors of property. When in 1585 the English state granted ’a propriety’, that is, an exclusive right to copy and sell a text in printed form, the right was proper to an individual, that is, it moved from public to private. But that ’propriety’ continued to be officially described as a ’priviledge’, that is, that it was granted for public purposes.74 The word also reasserted the link between state-conferred economic privilege and state-enforced textual acceptability.75 Only a proper text could qualify to be ’a proper copy’.76 It was by turning this argument against Lord Chancellor Eldon that the unauthorised reprinters of Byron’s Don Juan were able in the nineteenth century to bring about the largest readership of a literary work that had ever occurred until that time. And we still find traces of the same approach even in jurisdictions in which copyright is normally regarded as an absolute private property right – in some countries, for example, intellectual property rights are not accorded to texts officially regarded as pornographic.

  • 77 Discussed with examples by Jody Greene.

45The same verbal slide occurred with the word ’own’, that was used both in the sense of owning a right to reproduce a text for sale, and in the sense of acknowledging responsibility for having produced that text – ’owning up’ in modern usage. In the late seventeenth century when England had some of the tightest textual controls in its history, the prosecutors frequently asked ’do you own this book?’ If the book offended the political and ecclesiastical groups then in power, the results for the ’owner’ could be dire and sometimes fatal.77

Piracy

  • 78 [Henry Hills], The Life of H.H. with the relation at large of what passed betwixt him and the Tayl (...)

46The language of stealing arrived in England quite suddenly at the end of the seventeenth century, and established itself as the main metaphor between the lapsing of the Licensing Act in 1695, after which, for fifteen years, until the 1710 statute, there was no statutory basis for copyright. Indeed it is striking is that before the formal link between monopoly selling rights and state textual licensing was broken in 1695, those who infringed the copying rights were seldom, if ever, accused of ’stealing’. The words most commonly used, other than variations on abuse and disorder, appear to be infringement, violation, and trespass. One publisher is said to have ’trepanned’another’s copy, a notion of invasion of the body, a metaphor which contains, I suppose, some notion that the offence is intellectual?78

  • 79 Summarised from examples quoted by Bond, and texts reprinted in The Political and Economic Writing (...)
  • 80 John Fell, a bishop of Oxford, called the Stationers ’land-pirates’ in 1674 for violating the univ (...)

47In the discussions during the years before and around 1710, which included contributions by authors, some of whom, such as Addison and Defoe, were skilled rhetoricians, we still frequently hear the old metaphors, sickness, disguise, drones that suck the honey from the working fraternity, and so on. But copyright infringements were now, for the first time, routinely equated with theft, for example, to list a few metaphors noted in the pamphlet literature of the time, with shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital.79 And piracy.80

  • 81 Reasons humbly offered, p. 4.

48The read-across from piracy to copyright may have begun from that of a sea robber who operated outside all law and could be put to death without trial. For example, it was argued in 1688 that members of ecclesiastical organisations opposed to the official English religion ’should be no more encouraged than Pyrates, and common Enemies of Mankind’.81 But soon, as I read the record, the piracy metaphor changed to that of an interloper or a privateer – that is, to a trader who remained outside the chartered trading Company’s membership and could undercut the Company’s prices. This is, in fact, a precise analogy with the chartered guild of the Stationers’ Company which tried to bring all printers, publishers, and booksellers under its corporate jurisdiction.

  • 82 Quoted in St Clair, p. 89.

49One attraction of the piracy metaphor is that it caught the idea of loss of an investment, the writing of a long and useful learned work, such as the 1710 act ’for the encouragement of learning’ was intended to promote, being metaphorically equated with the planning and financing of a voyage that took years to reward its investors. Addison compared the years of education and study required to write a book to the fitting out of a ship for a long hazardous voyage. ’Those few investors who have the good fortune to bring their rich wares into port are plundered by privateers under the very cannon that should protect them’.82 Piracy at this time implied a long text.

50These were the years when the English state’s involvement in the transatlantic slave trade was being organised into chartered companies, and the pamphlet literature about the book industry drew its metaphors from that trade. Daniel Defoe wrote pamphlets on both, besides being the author of Robinson Crusoe – a much-admired literary character who, incidentally, made his fortune as a slave trader. And the arguments about the book industry of the time are full of slavery metaphors, knowledge being padlocked, authors slaves of the quill, enslaved to publishers, manumitted from one master only to be handed over to tyrannical corporations, and so on.

  • 83 St Clair, p. 82.
  • 84 Greg, p. 188.
  • 85 Ibid.
  • 86 Ibid., p. 189.

51But the piracy metaphor was also useful to the other side. One of the first references I have found, that occurs long before the cluster at the end of the seventeenth century, is in a document prepared by the Vice Chancellor and Senate of the University of Cambridge in 1625. The occasion was the dispute with the London industry who wanted to end the University’s privileged right to sell standard texts including astrological almanacs and magic prognostications, the tolerated illegitimate supernatural that continued alongside the official religion. The printed texts of these competing supernatural explanatory systems were produced in vast numbers every year with all the authority of the English state. Incidentally, I would judge that, until after 1774, most intellectual property disputes concerned breaches of the conferred monopoly to reprint astrological almanacs, the biggest and most reliably profitable sector of the historic book industry, and one which bound the political/ecclesiastical state and the industry together in a close economic/cultural alliance.83 In the dispute of 1625, the University, writing in Latin, thanked the Howard family for their help in ensuring that ’our little craft was not only delivered from the fury of the pirates (I mean the London monopolists) but under Arundel as captain and pilot brought safely into harbour and propitiously made fast to land’.84 In defence of its right to take a share of the business, the University deployed the whole panoply of common metaphors against its fellow-patentees in London – ’wicked tribe of robbers’, ’Monopolists hateful to gods and men’. ’Sacrilege when the privileges of the Muses are wrested from the hands of the citizens by fraud and force’, ’wresters of the law, plagues of the body politic, leeches of the state, and most artful plunderers’.85 ’So do ye gather honey not for yourselves, ye, bees’; ’wicked and greedy gormandizers [who] did your utmost to swallow up in your gaping jaws the immunity granted to [Cambridge University]’.86

  • 87 Notably in the work of the Abbé Raynal, L’Histoire philosophique et politique des établissements e (...)

52Another idea I offer is speculative – that the book industry’s decision to describe copyright infringement as piracy may have included a fear of an alternative unregulated intellectual domain, an idea anathema both to guilds and to the political/ecclesiastical state. Although, during the slaving era, sea pirates were public enemies, they were also, despite their cruelty, admired for their equality, electing their captain, dividing their loot equally, never stealing from one another – and providing a kind of model for an alternative society and economy. Did they represent an alternative intellectual domain that would take in intellectual outcasts such as republicans and atheists?87

  • 88 For example the word occurs several times in the Sculpture Copyright Act 1814, 54 Geo. III, c.56, (...)

53However, unlike the language of the bodily commonwealth that resulted in deaths and mutilations, the language of piracy was seldom taken seriously. For example, the industry did not proceed against the Irish offshore ’pirates’ under Irish common law. And, as the archival record shows, the London book industry often colluded with the ’piratical’ practices it condemned and benefited from them. The language of piracy was largely literary knockabout, a trope as conventional as the ancient jokes about unread books being sent to the pastry cooks and the necessary houses. For centuries, the penalty for stealing, let alone for sea piracy, was death. You could be hanged for stealing a book valued at no more than a few shillings. By the beginning of the nineteenth century, the word ’pirate’, meaning infringement of a state-conferred monopoly right, had become so far separated from the practice on which it was metaphored, that we find it in statute law.88

54Until very recent years, even during the most authoritarian eras, nobody is recorded as suggesting that the penalties for theft should be applied to the money that publishers claimed that they had had ’stolen’ from them by infringement of copyright. Indeed, until very recent times, the notion that unauthorised copying was morally equivalent to the crime of ’stealing’ was never in practice taken seriously, and it is still at odds with public opinion. The one exception I know of in the historical record, an unsigned letter to a newspaper from 1771 when the legal/commercial dispute about perpetual intellectual property was at its most bitter. The author is referring to the Scottish printer/publishers who were exercising their rights to reprint out-of-copyright texts under the 1710 statute:

  • 89 From a printed letter, February 1771 ’To the Printer’ probably of the Morning Advertiser from ’a f (...)

The taking of a Volume of Tom Jones out of Mr Becket’s Shop is a Felony and should the plundering the whole copy be no Offence at all? Surely a mere Embargo upon such Pirates is too mild a Punishment; they ought at least to stand in the Pillory, if not swing upon the Gallows before the Door of the Chapter Coffee house, as a Terror to piratical Booksellers, Printers, or Publishers.89

Landed Property

  • 90 For example in Francis Hargrave, An Argument in Defence of Literary Property (London, 1774).
  • 91 Atkyns, p. E.
  • 92 London Printers Lamentation, p. 6.
  • 93 Hargrave, p. 36.
  • 94 Especially by Wordsworth. Discussed by, for example, Tilar J. Mazzeo, Plagiarism and Literary Prop (...)

55In the eighteenth century, the ’property’ with which copyright was mainly metaphored shifted to land, that is, with an asset that, unlike cargos of ships, is not easy for pirates to steal. The talk is of ’possession’ and ’title’.90 Rights were ’trespassed on’.91 Or ’invaded and intruded upon’.92 Literary property was an ’occupancy’.93 Trespass continued to be the main metaphor for plagiarism well into the nineteenth century.94

  • 95 Hargrave, p. 37.

56And we can see the attractions of the private land metaphor for the producer interest, both authors and publishers. The bodily commonwealth, harsh though it was, did imply, in theory at least, a concern for the health of every person participating in the commonwealth. But the rhetorical tendency of the land metaphor was not only to naturalise a business practice but to do so in a way that excluded as irrelevant all interests beyond those of the ’proprietor’. The landowner did not have to justify his actions to those against whom he shut his gates. Indeed he looked for ’protection’ against them, a metaphor that continues. However, even at the height of the dominance of the landed estate metaphor – around 1774 – there were voices who claimed that to monopolise the ownership of texts was to damage a wider interest, a ’public utility’ in the flow of invention. And with ’flow’ we hear a new land metaphor, that again picks up a dominant economic concern of the times, the dredging of rivers. If knowledge is monopolised ’every article of trade, every branch of manufacture, would be affected and clogged, if not totally stopped’.95

  • 96 Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and (...)

57It is striking that, in current discussions, even those who draw attention to damaging effects of the current long – near perpetual – copyright regimes, such as Lawrence Lessig, are reluctant to critique the discourse of ’property’ as such. The potentially damaging effects with which they are mainly concerned are not the consumer interest in access to knowledge but artistic expression, that is, on the successor producer interest.96 As was the case with its bodily predecessors, the metaphor of property has, we can say, to a large extent, succeeded in its rhetorical tendency to put the main features of the institution above or beyond question, and that it continues to do so.

Moveable property

  • 97 Quoted by Catherine Seville, The Internationalisation of Copyright Law (Cambridge: Cambridge Unive (...)
  • 98 Robert L. Patten, Charles Dickens and His Publishers (Oxford: Oxford University Press, 1978), p. 1 (...)
  • 99 Quoted by Catherine Seville in a draft paper circulated to CIPIL from a published letter to Dicken (...)

58During the nineteenth century the property against which copyright was metaphored underwent another shift, this time from landed to moveable property. British authors, whose works were reprinted offshore in the United States, led the way in using the language of ’robbery’, sometimes robbery with violence. The American reprinters were, for example, ’Rob Roy and his cattle-thieves.’97 ’Robbers that ye are’, were refrains of Dickens and Thackeray in their efforts to persuade the American state to extend copyright to works published abroad.98 Thomas Carlyle too adopted an obsolete menacing language reminiscent of the early modern state: ’That thou belongst to a different Nation and canst steal without being certainly hanged for it, gives thee no permission to steal. Thou shalt not in any wise steal at all’.99 It is unlikely that the political pressures – and the recent decision – to reclassify copyright infringement as a criminal rather than a civil offence could have passed the legislatures if that metaphorical shift had not occurred.

Implications

  • 100 Kevin Gray and Susan Francis Gray, Elements of Land Law, 4th edn (Oxford: Oxford University Press, (...)

59So what are the implications of this brief summary of the history of the metaphors for our understanding of the currently dominant metaphor of property? As with the bodily metaphor, we can see that the property metaphors too has shifted in accordance with the dominant concerns of the time – sea piracy, trespassing on landed estates, and theft of personal moveable property. We can also see that the forms of property on which ’intellectual’ property has been metaphored have themselves changed, and in many cases are different from what they were when the comparisons first became current. The monopoly implicit in real property, for example, on which copyright continues to be metaphored has itself long been regulated by statute. The days when ’a man could do what he wills with his own’, if they ever existed, have long since gone. Restrictions on the uses to which real property can be put, introduced for public policy reasons, are now more comprehensive than those on intellectual property. As the authors of the standard work on land law wrote in their latest edition, an act of Parliament of 2002 marked the culmination of a long process in which ’[t]he philosophical base of English land law has finally shifted from empirically defined fact to state-defined entitlement, from property as a reflection of social actuality to property as a product of state-ordered or political fact’.100 And, with moveable property too, there is now also a large body of national and international law and regulation, much of it aimed at combating monopolistic practices or lessening the damaging effects on the interests of consumers described by Adam Smith two centuries ago.

60So we have arrived at a discursive situation in which none of various forms of property on which intellectual property has historically been metaphored can any longer act as adequate comparators. The primary idea of ’property’, like its reciprocal ’piracy’, has become a dead metaphor, retaining rhetorical power but no longer offering much explanatory or analytical value.

Essential Differences, Rivalrous and Non-rivalrous Goods

61What none of the property metaphors has been able to accommodate is the fact that the differences between ’property’ and ’intellectual property’ are not contingent or superficial but essential, inescapable, and unignorable. If a real property, such as a ship’s cargo, a landed estate, or a collection of personal moveable goods, is divided, the outcome in terms of benefit is also divided. With intellectual property, however, that is not the case. One person’s level of education and knowledge does not depend upon other persons having correspondingly lower or higher levels of education and knowledge. The benefit you may receive from reading Shakespeare is not lessened if I read Shakespeare. It follows that, as soon as we admit, or rather re-admit, desired outcomes as the central purpose of the laws and institutions of intellectual property, then any analysis of the public policy choices has to give primacy to the fact that the outcomes that they are intended to promote are non-rivalrous goods.

62It may be too much to expect that the metaphor of ’intellectual property’ should be retired or downgraded as its predecessors have been, but when it is used in public policy discussions, it is reasonable to require that, as in the past, the metaphor should adapt itself to the dominant concerns of the economy, which at the present time increasingly centre on non-rivalrous goods such as education, knowledge, and access to knowledge. And, whatever metaphors are used or adapted, we can reasonably ask that, for the purposes of analysis and policy-making, the institution is also conceptualised for what it has always been, a state-conferred and state-guaranteed monopoly right to copy and to sell a text at a monopoly price, an economic privilege bestowed by a polity with the aim of achieving certain beneficial consequences and outcomes for the members of that polity, both short term and long term.

63In the United Kingdom, however, we have no arrangements for ensuring that the effects, consequences, and outcomes of the intellectual property regime are professionally evaluated against the benefits to the public that are claimed. Uniquely, for this most vital of monopolies, we have no regulator, no equivalent of Ofcom or Ofwat, no codes of practice, and no appeal tribunals, although the risks from the monopolisation of knowledge, ideas, education, and the means by which they are made available, are matters of at least as much importance as telephone charges and water bills.

Notes

1 I should like to record my thanks to Lionel Bently, Ronan Deazley, Paulina Kewes, Irmgard Maassen, Jenny Mander, Paul Mora, Douglas Paine, Aysha Pollnitz, Barbara Ravelhofer, Mark Rose, Emma Rothschild, John St Clair, the participants in seminars arranged by Lionel Bently and his colleagues at the Cambridge Centre for Intellectual Property Law (CIPIL), and others who offered comments at various stages of discussion and preparation.

2 An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned 1710, 8 Anne, c.19.

3 After 1900 the uniqueness of print as a medium able to carry complex texts across time and distance began to be challenged by radio and film.

4 Mark Rose, ’Copyright and Its Metaphors’, UCLA Law Review, 50 (2002), 1-16. Rose makes many of the same points – mainly for later periods – and comes to the same conclusions about the enduring power of what he calls ’the unconscious of copyright’. I am grateful to him for drawing his article to my attention and for many useful subsequent conversations.

5 Discussed, and the effects of the regime evaluated, with quantification, by William St Clair, The Reading Nation in the Romantic Period (Cambridge: Cambridge University Press, 2004), especially chapters 2, 3, 5, 6 and 7. A brief summary of the main findings of that book is available, under Creative Commons, in the 2005 John Coffin Memorial lecture, published by the Institute of English Studies, School of Advanced Study, University of London: http://ies.sas.ac.uk/Publications/johncoffin/stclair.pdf [accessed 26/2/2010].

6 Examples of intellectual property in titles that had passed into the public domain continuing informally as ’the customs of the trade’ even after 1774 are noted in St Clair, p. 113. A recently published documented example is the illegal contract by John Murray, the publisher of Byron’s Childe Harold’s Pilgrimage, A Romaunt (London: Murray, 1812) in which he claimed the ’entire and perpetual copy right’. The Letters of John Murray to Lord Byron, ed. by Andrew Nicholson (Liverpool: Liverpool University Press, 2007), p. 6.

7 The opening words of the Fine Arts Copyright Act 1862, 25 & 26 Vict., c.63, are reprinted in Reginald Winslow, The Law of Artistic Copyright (London: William Clowes, 1889), p. 101. As an example of the operation of extra-statutory copyright, in 1829 the artist Sir David Wilkie obtained £1,200 for assigning to a print publisher ’all his copyright or right in nature of copyright of his painting ”The Chelsea Pensioners” ’ British Library Additional Manuscripts 46,140 (a file that contains other examples).

8 For preemption rights, a classic feature of cartels, in the historic British book industry see St Clair, pp. 94-6.

9 Discussed in St Clair, chapter 4 and elsewhere.

10 A striking example is the clampdown on abridgements, anthologies, and adaptations of existing printed texts the English book industry introduced around 1600 with the aim of protecting the prices of the main texts. Discussed in St Clair, chapter 4.

11 Examples, with quantification, of the effects on prices, production, access, and so on, of the 1774 judicial decision and of nineteenth century copyright acts are given in St Clair, Reading Nation.

12 Lionel Bently and Brad Sherman, Intellectual Property Law, 2nd edn (Oxford: Oxford University Press, 2004).

13 Quoted from the Copyright Act 1842, 5 & 6 Vict., c.45, by John Shortt, The Law Relating to Works of Literature and Art: Embracing the Law of Copyright (London: Horace Cox, 1871), p. 636. This wording, to be found in other publications of the time, confirms that the ’learning’ which the statute of Anne was intended to encourage was the production and print publication of learned books, what today would be called research, not ’learning’ in the sense of what today would be called education.

14 A point also made by Rose, p. 3: ’Metaphors are not just ornamental; they structure the way we think about matters and they have consequences’.

15 A point also made by Rose, p. 16: ’We cannot simply escape from these metaphors because we cannot escape from history and from ourselves’. One of the most influential speeches in the debates of 1774 is replete with the metaphors discussed in the present article: ’all our learning will be locked up in the hands of the Tonsons and Lintots of the age, [the intellectual property owners] who will set what price upon it their avarice chuses to demand, till the public become as much their slaves as their own hackney compilers are’. But ’Knowledge and science are not things to be bound in such cobweb chains; when once the bird is out of the cage – volat irrevocabile – Ireland, Scotland, America [offshore publishers], will afford her shelter’. Speech of Lord Camden of February 22 1774, The Parliamentary History of England, from the Earliest Period to the Year 1803. From which last-mentioned Epoch it is continued downwards in the Work entitled, ’The Parliamentary Debates’, vol. 17 (London, 1813), col. 997. In an important judgment of 2001, one of the judges in the British House of Lords, acting as supreme court, resorted to an ancient agricultural metaphor: ’No-one else may for a season reap what the copyright owner has sown.’ Quoted by Ronan Deazley, Rethinking Copyright, History, Theory, Language (Cheltenham: Edward Elgar, 2006), p. 3.

16 Quoted in St Clair, p. 457 from A. Luders et al, Statutes of the Realm (1810-28), iii, p. 456.

17 W.W. Greg, A Companion to Arber (Oxford: Clarendon Press, 1967), p. 185.

18 Summarised in St Clair, p. 457. An example of enforcement in William A. Jackson, Records of the Court of the Stationers’ Company 1602 to 1640 (London, 1957), p. 2. Price controls are not mentioned by Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999); or by Lionel Bently and Brad Sherman, Intellectual Property Law; and only once and incidentally by Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (Oxford: Hart Publishing, 2004), p. 108, as something smuggled into a bill whose main purpose was to forbid the importation of offshore reprints of English language books. For a note on the early American legislation that included provision for redress against excessive book prices see St Clair, p. 488.

19 There are many examples in [Michael Sparke], Scintilla, or A light broken into darke warehouses (1641).

20 See examples in Scintilla.

21 A Transcript of the Registers of the Company of Stationers of London 1554-1640, 5 vols, ed. by E. Arber (London, 1875), iv, p. 526.

22 Samuel Hartlib, quoted in Cambridge History of the Book in Britain (Cambridge: Cambridge University Press, 2002), IV, p. 315. For examples of the dog-in-the-manger effect see St Clair, pp. 52, 365 and 392.

23 Quoted by Richmond P. Bond, ’The Pirate and the Tatler’, The Library, 18, 4 (1963), 257-74. The phrase ’For the Benefit of the Poor’ occurs on the title page of, for example, Philip Bisse, A Sermon preach’d at the Anniversary Meeting of the Sons of the Clergy in the Cathedral Church of St Paul on Thursday December the 2nd (1709). Hills’s catalogue, printed with that text, lists numerous other delivered sermons by churchmen, published at lower than normal prices as the hiatus in the law [between 1695 and 1710] at that time permitted.

24 Quoted by A.S. Collins, Authorship in the Days of Johnson (London: Holden, 1927), p. 72, from a pamphlet in the British Library BL 357.c.2.

25 For example, Thomas Edward Scrutton, The Laws of Copyright (London: 1883), p. 8.

26 See, especially, David George Hale, The Body Politic: A Political Metaphor in Renaissance English Literature (The Hague: Mouton, 1971).

27 Richard Atkyns, Original and Growth of Printing (London: Printed by John Streater, for the Author, 1664), Bi. Discussed by Jody Greene, The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730 (Philadelphia: University of Pennsylvania Press, 2005), p. 30.

28 Example in Greg, p. 202.

29 Arber, i, p. 587.

30 Examples from The Importance of the Liberty of the Press (1748), p. 8.

31 Discussed by Lisa Maruca, The Work of Print, Authorship and the English Text Trades 1660-1760 (Seattle: Helman, 2007).

32 Reasons humbly offered for the Liberty of Unlicens’d Printing . . . In a Letter from a Gentleman in the Country, to a Member of Parliament (London, 1692), p. 4.

33 Ibid.

34 Quoted by Catherine Seville, Literary Copyright Reform in Early Victorian England (Cambridge: Cambridge University Press, 1999), p. 192.

35 Rose, p. 10.

36 Roger L’Estrange, Considerations and Proposals in Order to the Regulation of the Press (1663), p. 15, quoting a pamphlet of 1660.

37 Quoted by Hale, p. 74.

38 Discussed in St Clair, especially pp. 11-2, 109-10 and 308-12.

39 Atkyns, p. Bii.

40 Ibid., p. C7.

41 Richard S. Tompson, ’Scottish Judges and the Birth of British Copyright’, The Juridical Review, 37 (1992), 18-42 (p. 34).

42 Quoted from the original transcript by Greg, p. 144.

43 James Raven, The Business of Books 1450-1850 (New Haven: Yale University Press, 2007), p. 62, quotes an ecclesiastical court using the cognates ’misorder and abusion’ about the book industry, no date given.

44 Arber, i, p. 474.

45 Arber, i, p. xxvii. From his comprehensive work on the Stationers’ Company registers, court records, and other primary documents over many years, Edward Arber concluded that the ’disorder’with which the Stationers were most concerned were ’trade control and copyright’ [intellectual property] rather than ’religious or political power’ [censorship and self-censorship of texts].

46 Examples in Arber, ii, pp. 772, 778-9.

47 Quoted by Jody Greene, p. 28.

48 The London Printers Lamentation (London, 1660), p. 4.

49 Ibid., p. 3.

50 An example from 1720 of a printer being judicially put to death for a publishing offence in St Clair, p. 88.

51 Discussed with particular reference to reading by James Simpson, Burning to Read (Cambridge, MA: Harvard University Press, 2007). In The Answer to a Poisoned Book (1534) More describes his opponents as ’the contagion [that] crepeth forth and corrupteth further, in the manner of a corrupt cancer’, a risk that was also run by the ’leech that fasting cometh very near and long sitteth by the sick man busy about to cure him’, quoted by Simpson, p. 270.

52 Quoted from Patriarchia (1660) by Catherine Gallagher, Nobody’s Story (Berkeley: University of California Press, 1974), p. 79.

53 George Chandler [a high ranking churchman], An Introductory Lecture delivered at the Commencement of the Second Session of the Chichester Literary and Philosophical Society (Chichester, 1832), p. 19.

54 For the cheap editions of Don Juan that poured through a gap in the intellectual property regime see St Clair, chapter 16, quantified in Appendix 12.

55 A Course of Lectures to Young Men ... Delivered in Glasgow, by Ministers of Various Denominations (Glasgow, 1842), p. 142.

56 St Clair, p. 334.

57 Joel Hawes, Lectures to Young Men on the Formation of Character ... with an Additional Lecture on Reading (London, 1829), p. 156.

58 Tompson, p. 34.

59 Arguments Relating to a Restraint upon the Press ... in a Letter to a Bencher from a Young Gentleman of the Temple (London, 1712), p. 21.

60 The main scholarly works on the historical genesis and development of notions of plagiarism are those written or edited by Paulina Kewes, Authorship and Appropriation: Writing for the Stage in England 1660-1710 (Oxford: Oxford University Press, 1998), and Plagiarism in Early Modern England (London: Palgrave, 2003). But, so far have our metaphors changed since the time about which Kewes writes that I hesitate to quote. The publisher’s page of the latter volume declares, that ’no paragraph of this publication may be reproduced, copied, or transmitted save with written permission’. The use of the archaism ’save’ implies that the requirement is an ancient one. The publisher goes on to threaten that: ’Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages’.

61 Robert Greene, Groatsworth of Wit (London, 1592).

62 Sir Thomas Browne, ’To plume ourselves with others’ feathers’, quoted by Christopher Ricks in Kewes, p. 31. Another example, Lauder’s accusation of Milton, discussed by Richard Terry in Kewes, p. 186.

63 Arber, i, p. 101.

64 Greg, pp. 73, 123; London Printers Lamentation, p. 8.

65 Quoted by Tompson, p. 32.

66 Quoted by D. Hunter, ’Copyright Protection for Engravings and Maps in Eighteenth-Century Britain’, The Library, 6th ser., 9 (1987), 128-47 (p. 135), from The Case of the Designers, 1734/5.

67 A charge also made against the copyright infringers in the early eighteenth century. See Bond, ’The Pirate and the Tatler’.

68 Quoted by Cyprian Blagden, The Stationers’ Company: A History (London: Allen and Unwin, 1960), p. 131.

69 A Letter to the Society of Booksellers (1738), p. 44.

70 Arber, i, pp. 586-7.

71 ’Epistle’ in L’Estrange.

72 Hills, p. 1.

73 Atkyns, p. Bii.

74 For example, ’such Person to whom such Entry is made, is, and always hath been reputed and taken to be the Proprietor of such Book or Copy, and ought to have the sole Printing thereof; which Privileg[e] and Interest is now of late often violated and abused’. Ordinances of 1682, Arber, i, p. 22.

75 An example in Greg, p. 35.

76 The phrase used in one case before the Stationers’ Court; Jackson, p. 2.

77 Discussed with examples by Jody Greene.

78 [Henry Hills], The Life of H.H. with the relation at large of what passed betwixt him and the Taylors Wife (London: Printed by T.S., 1688), p. 54.

79 Summarised from examples quoted by Bond, and texts reprinted in The Political and Economic Writings of Daniel Defoe, ed. by W.R. Owens and P.N. Furbank (London: Pickering and Chatto, 2000).

80 John Fell, a bishop of Oxford, called the Stationers ’land-pirates’ in 1674 for violating the university’s privilege. He also attacked the Stationers’ court in 1684 for ’piracie’. See Adrian Johns, The Nature of the Book (Chicago: Chicago University Press, 1998), p. 344, fn. 49. ’Pyrate’ occurs in a document of 1697 quoted by Deazley, On the Origin, p. 18. We can also see the transitions within the same documents. Defoe, in his brief anonymous An Essay on the Regulation of the Press (London, 1704), available freely online as a Renascence Edition transcribed by Risa S. Bear, begins with metaphors of the body ’to prescribe a proper Remedy’ that would provide a ’cure’: [censorship] is ’cutting off the leg to cure the gout in the toe, like expelling poison with too rank a poison’; a book should not be ’damn’d in its womb’. However the author also moves to commercial and investment metaphors related to claimed outcomes: licensing would be ’a check to Learning, a prohibition of Knowledge, and [would] make Instruction Contraband’; intellectual property offences, ’some printers and booksellers printing Copies none of their own’, are described as ’a most injurious piece of Violence’; and unauthorised abridgement is ’Press-Piracy’, ’down-right robbing on the Highway, or cutting a purse’. Defoe also adduces the possible damage to the familial guild system, elements of which were still operating in his day: ’Nor is there a greater Abuse in any Civil Employment, than the printing of other Men’s Copies, every jot as unjust as lying with their Wives, and breaking-up their Houses’.

81 Reasons humbly offered, p. 4.

82 Quoted in St Clair, p. 89.

83 St Clair, p. 82.

84 Greg, p. 188.

85 Ibid.

86 Ibid., p. 189.

87 Notably in the work of the Abbé Raynal, L’Histoire philosophique et politique des établissements et du commerce des Européens dans les deux Indes, in which he draws on earlier writers. The first edition was published offshore in Amsterdam in 1770, to be followed by numerous editions, translations, abridgements, and piracies, ’contrefaçons’. In the 12 volume offshore edition (Geneva: Pellet, 1780) the main passage describing the customs of the ’flibustiers’ or ’pirates’ is in vol. v, pp. 275-319. In the less full English translation of 1811, A Philosophical and Political History of the Settlements and Trade of the Europeans in the East and West Indies (Edinburgh: Robertson and others, 3 volumes, 1811), the main passage is at vol. ii, p. 228. Hans Turley, Rum, Sodomy and the Lash (New York: New York University Press, 2001), notes that the democratic values attributed to the pirates were well known before Raynal, being noted, for example, by Defoe.

88 For example the word occurs several times in the Sculpture Copyright Act 1814, 54 Geo. III, c.56, as quoted by Shortt, p. 636.

89 From a printed letter, February 1771 ’To the Printer’ probably of the Morning Advertiser from ’a fair trader’ in ’Press Cuttings on Artistic Subjects 1685-1830’, National Art Library, Victoria and Albert Museum, [PP.17.G], 1, 43. The London Printers Lamentation, p. 6, quotes the remark in the biblical Book of Proverbs that ’He that saves a Thief from the Gallows shall first be robbed himself’ but only as a part of a call for infringements not to be ignored.

90 For example in Francis Hargrave, An Argument in Defence of Literary Property (London, 1774).

91 Atkyns, p. E.

92 London Printers Lamentation, p. 6.

93 Hargrave, p. 36.

94 Especially by Wordsworth. Discussed by, for example, Tilar J. Mazzeo, Plagiarism and Literary Property in the Romantic Period (Philadelphia, University of Pennsylvania Press, 2007).

95 Hargrave, p. 37.

96 Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Creativity (New York: Penguin, 2004).

97 Quoted by Catherine Seville, The Internationalisation of Copyright Law (Cambridge: Cambridge University Press, 2006), p. 167.

98 Robert L. Patten, Charles Dickens and His Publishers (Oxford: Oxford University Press, 1978), p. 119; Jerome Meckier, Innocent Abroad, Dickens’s American Engagements (Lexington: University of Kentucky Press, 1990), p. 73.

99 Quoted by Catherine Seville in a draft paper circulated to CIPIL from a published letter to Dickens dated 26 March 1842.

100 Kevin Gray and Susan Francis Gray, Elements of Land Law, 4th edn (Oxford: Oxford University Press, 2005), p. 387.