The Copyright Story
This chapter introduces the 18th century copyright story, a story toldover the centuries until it has become conventional. It is a story completewith victims, villains, and heroes and continues to be important today.Copyright has evolved in many ways; it incorporates a far broader spectrum ofwork and is significantly different today than it was in the 18th century.However, we owe the assumptions about the incentives copyright provides, andour general approach to authorship, to the 18th century law.
The history of copyright and authorship described in this chapteris far from complete. My purpose is not to supplement this history, but toprovide a reading of the history which focuses on the rhetorical constructionof copyright and the manner in which the tension between sovereignty andexchange affects the emergence of this vision. The English example,especially, illustrates how authorship is used to enclose "new territories"under the rubric of private ownership.[1]It is often forgotten that what appears to be a solid foundation is actually apolitical construction.[2] Specifically,copyright is a socially constructed discourse that has become a powerful socialmyth.[3] This myth, constructed over 200years ago, has taken on the power of truth, its assumptions and historyignored.
Copyright has been the acceptable method of protection of literaryintellectual work since the 18th century. Originally, copyright protected onlyliterary works. As new technologies made different forms of creativitypossible, copyright law was expanded to include photography, music, andcomputer software. Copyright has retained its strength throughout the ages,especially in the United States and Europe.
New technology opens a revolutionary space in which to examine thelanguage of copyright because a digital environment facilitates the free flowof information much more readily than the print environment. While othertechnologies provided small challenges, the computer revolution is the most farreaching challenge to copyright. Possibilities for exchange abound as computertechnology ensures everything from literature to information is in digital formand easy to upload, trade, and copy. However, the space for debate is rapidlyclosing as the traditional copyright story is extended and stamped upon theelectronic environment. Authorship is given precedence over writing.
Brad Sherman and Alain Strowel note in the introduction to theircollection of essays on copyright, that copyright is a body of law which hasyet to be put "in context," meaning it is only now being subjected to thehistorical scrutiny other aspects of the law have already undergone. HISTORY OF COPYRIGHT: THE ENGLISH EXPERIENCE In reading the history of copyright we need to start with authorship, becausecopyright and authorship go hand in hand. Copyright protects the property ofan author. In Paul Goldstein's words, "copyright, in a word, is aboutauthorship."[6] While this statementappears unproblematic, a brief history illustrates the energy and politicaldebate involved in creating copyright and the proprietary author. Theemergence of copyright in 18th century English law serves as a point ofdeparture. In 1476 the printing press was introduced in England. The printing press madeseveral innovations possible. First, duplications became easier and moreaccurate. Second, mass distribution became viable. The printing pressrevolutionized information storage, retrieval, and usage. Printing, unlike writing, allowed a society to build on the past with aconfidence that each step was being made on a firm foundation. Printinggenerated confidence that new information was an improvement over the old. Therevolution in the ability to accurately reproduce works fostered anunderstanding that progress can occur through a process of revision andimprovement.[7] Thus, printing made the modern book, concepts of progress, and scholarshippossible. Before printing, with writing, the oldest copies were considered themost correct because inaccuracies developed with each hand-copied work.Written texts tended to evolve based upon who was doing the copying and whichparts were of interest to them. The increased accuracy and rapidity of thenewer editions which resulted from the printing press made recent editions morevalued than older ones. Printing provided a mechanism through which a largerreading public developed, thus constituting the emerging public sphere. Starting in 1529 laws were passed requiring manuscripts to be licensed withthe Stationers' Company. An important consideration, at least for the Crown,were the numerous dissident tracts made available through the printing press.Copyright was a controlling mechanism for the British government. In order for an intellectual property system to be realized, Mark Rose arguesseveral criteria needed to be met. First, "a sufficient market for books tosustain a commercial system of cultural production" had to exist. The 1688 revolution in England provided an opening for the emergence of adebate on liberty and property. Mark Rose notes that after the 1688 revolutionthere was a stronger emphasis on liberty and property in the public discourse.While not complete, this new discourse helped build foundations for the authoras proprietor in the early 18th century.[13] Corresponding notions of rights in tangible propertyhelped things along. Making the link between tangible and intangible propertywas a critical aspect of the emerging discourse over proprietary authorship. The metaphors employed are useful in analyzing the copyright story. Metaphorsare used to make the unfamiliar familiar and provide a conceptual framework foraction. A variety of metaphors were tested in the rudimentary stage of thisdiscourse in order to make the best possible case for protection. In an effortto establish who the good guys were, the author was depicted as shepherd,vessel of divine inspiration, magician, and monarch during the 16th and 17thcentury. Paternity became a common metaphor as well.[14] Eventually, the metaphor of a landed estate wasfavored. The author, in this final metaphor, worked at a literary creation.The value he added made the work his property. Mark Rose explains: An alternative metaphor, literary property as a landed estate, had long beenavailable in the rhetoric of the stationers' pleas and claims, and in theTatler essay we can see Addison experimenting with this trope. Duringthe course of the next fifty years, the figuration of the literary work as aform of estate would be reiterated and elaborated, and it contributed to a newway of thinking about literature.[15] The landed estate metaphor brought to intangible property the characteristicsof tangible property. Thus, the narrative emerging was one which privilegedauthorship as proprietary. During the late 18th century, private property rapidly replaced the Englishcommons, where laws were passed prohibiting peasants from catching fish orkilling deer. The landed property metaphor was a powerful tool forunderstanding how one could own ideas, as well as land.[16] By aligning the author in this emerging drama withlanded estates, the people engaged in this discourse could easily draw uponimages of theft and hardship because of loss of property. The author as ownerof ideas emerged. However, this identity served purposes besides theauthor's. Prior to the Statute of Anne, or the Copyright Act of 1709, printed matter wascontrolled via the Licensing Act which allowed authorities to prohibitpublication of anything "dangerous." The Licensing Act, repealed in 1694,mandated all books be licensed by registering them with the Company ofStationers. Once registered with the Company, the work became the "copies" ofthe Stationers' Company.[17] Registrationoccurred when the book was entered into the register. The Company recorded whoowned the "copy-right."[18] TheStationers' Company, the body established to censor printed material by theCrown, had a virtual monopoly over all printed matter. The emergence of the"copy-right" is the Stationers' Company right to copy rather than the author'sright to own. Logically, it would seem, the booksellers would lobby for the Statute of Annebecause the elimination of the Licensing Act left them without protection fortheir copyrights and thus vulnerable to illegal reproductions.[19] However, Mark Rose and Peter Prescott both provide adifferent explanation. As Peter Prescott argues, the Stationer's company wasnot immediately affected by the loss of the Licensing Act because they were,essentially, a book cartel. The Stationer's company controlled prices,determined what was published, and excluded outsiders. Working as a guild, thebooksellers of London effectively excluded outsiders from competing in theLondon market. The guild was replete with a mandatory seven yearapprenticeship and each member was required to follow guild rules. Within the printing monopoly, licensing was merely a helpful, but notessential, way of controlling the publication of books. The monopoly could bemaintained because the names inscribed in the Stationers' ledger were not thenames of authors, they were the names of printers. Author's sold their booksto printers, usually for a flat fee, thus giving up rights to publication andany further royalties, even if the book was popular. Generally, once enteredinto the ledger, this "copy-right" was respected by the other members of theguild. Within the guild, the "copy-right" to books written by those deadhundreds of years (and thus no longer subject to protection) were still boughtand sold. The printer who owned the copyright for these older manuscripts wasthe only ones who could "legitimately" reproduce the book in question forsale. The Statute of Anne was not intended as a copyright protection act, but as atrade-regulation act. Its principle function was to regulate the book trade. The 21 year extension of copyrights created a buffer for the LondonBooksellers which explains why the two important landmark cases on Englishcopyright did not occur until later. As Patterson notes: Although the Statute of Anne was enacted in 1709, it was 1774 before it finallyreached the House of Lords for a definitive construction. Events andcircumstances of the sixty-five years since its enactment had obscured both thebackground of the legislation and its antecedents. Fundamental changes hadoccurred between the enactment of the statute and its construction by theCourts.[21] The Statute of Anne was created to prevent monopolies in the book trade. Thus,with the prospect of the monopoly tumbling, booksellers began developingarguments to justify their continued control. During this period it was customary for the author to sell his work to thebookseller who then reprinted it at will. The author, however, maintained somebasic rights in the text. The bookseller could not change the words, or add tothe text. The booksellers began building a common law approach to copyright toaddress the "rights" authors continued to hold after they sold books topublishers. These rights included the right to sell the work, thus protectingthe publisher too. As Patterson attests, "Although the author had never held copyright, hisinterest was always promoted by the stationers as a means to their end." The villains were those the London book cartel called 'pirates.' Intellectualpirates continue to play the role of villain today. These pirates were guiltyof printing books belonging to the London cartel. As Rose puts it, "the fightwas between those who controlled the trade through the right to print the mostvaluable works and those excluded from power who resorted to what themonopolists termed "piracy."[23] Thiscontroversy sparked heated debates, letters, articles, and narratives aboutpiracy and more generally the rights of authorship.[24] The London booksellers detailed the tragic story ofpiracy with their personal horrors. Piracy, it was told, was ruining honestbusinessmen, their wives and children. The copies (books) were theinheritances of these innocents and pirates were deftly stealing from themouths of babes.[25] The story told bypublishers about piracy was appropriated by those advocating authors and usedto illustrate the problems with lax protection for authors. These personaltragedies established the narrative tone for policy making. While thesepathetic narratives are not the only reason why decision making occurs, they dohelp obscure the more powerful logic of profit. In 1769, the publishers won avictory in Millar v. Taylor. This decision, which was overturned fiveyears later by Donaldson v. Beckett, succeeded in fixing the idea ofcopyright as an author's right.[26] Eventhough Millar was overturned, it conceptually created author's rightsin their work. Future law, even though it limited this right, began with theassumption that an author had rights invested in their work. In a somewhattricky maneuver, this coup ultimately benefited the booksellers. Pattersonexplains: The change, however, was less a boon to authors than to publishers, for itmeant that copyright was to have another function. Rather than being simplythe right of a publisher to be protected against piracy, copyright wouldhenceforth be a concept embracing all the rights that an author might have inhis published work. And since copyright was still available to the publisher,the change meant also that the publisher as copyright owner would have the samerights as the author.[27] Even though the booksellers failed to establish a perpetual copyright inMillar, they succeeded in establishing the natural right of the authoras proprietor. This right transferred to the publisher upon purchase of thecopyright. The bookseller's helped solidify a way of thinking about authorshipbeneficial to those owning the copy-right to authorial works. It must also be recognized that the Statute of Anne was passed almostimmediately after the unification of England and Scotland. Scotland had aprinting trade, but no law of copyright. In 1707 England and Scotland united.In 1709 the Statute of Anne was passed. There is certainly a connectionbetween these two events. The booksellers in London had other means ofprotecting their monopoly and were not worried until it became clear Scottishbooksellers were competing with London booksellers. Scottish booksellers, inthe 18th century battle of the booksellers, were the pirates used to justifynew copyright law. Scottish booksellers would print texts at much lower pricesthan their London competitors. This practice, of course, became hugelycontroversial. The intent of the Statute of Anne was twofold. First, toprotect against future monopolies in the bookselling trade and second, to drawScotland under some form of copyright law. Of course, in reacting to thelatter and wishing to avoid the former, the Statute of Anne succeeded inconferring all rights in a book to publishers for a limited amount oftime instead of some rights for an unlimited amount of time. Afterseventy years and numerous arguments about the natural rights of an author,Donaldson v. Beckett became the landmark case. Donaldson v. Beckett addressed common law versus statutory author'srights. The case found that an author of a literary text had a common lawright of ownership that was held in perpetuity. The Statute of Annerestrained, or pre-empted this common law right, and limited an author's rightto statutory ones.[28] Patterson arguesthis decision was rendered to break the bookselling monopoly. However, whilecopyright had transformed from a publisher's right to an author's right, thepublisher was still the beneficiary. The Battle of the Booksellers may nothave provided publishers with a perpetual copyright, but it served its functionby creating the proprietary author and the literary work as legal conceptswhich define the "center of the modern literary system."[29] Within the cultural framework of 18th century England the battle overcopyright raged.[30] The concept of the"modern proprietary author" was used as a weapon in the struggle between theLondon booksellers and the booksellers of the provinces.[31] Clear victims and victimizers emerged, as did ageneral understanding about the necessity to protect an author's rights. Thenarrative was successful in establishing the rights of authors as filteredthrough booksellers. The economic benefits gained by advocates of an author'sright ensured a strong defense of copyright in the future. Over the next 100 years, the text became defined more clearly as a boundedentity instead of a speech act.[32] Whowrote the text became the focal point instead of the relationship between thetext and author. What is unique about the Donaldson decision is the"development of 'intellectual property' as a creation of the author'sintellect..."[33] Prior to this approach,the author was firmly associated with the past and with the scholarship hebuilt upon.[34] However, assigningownership is critical in a discourse emphasizing sovereignty. The author asboundary between texts instead of engaged in a dialogue with the text becamethe primary paradigm. While author's rights were the London publisher's toolto maintain strict control over copyrights, the result has had a profoundimpact on how literary works and intellectual property are perceived. This newsocial relationship transformed the way society perceives the ownership ofknowledge. HISTORY OF COPYRIGHT: THE GERMAN EXPERIENCE While Mark Rose focused on England, Martha Woodmansee studied the emergence ofthe proprietary author in Germany. While there are differences between Germanand English copyright protection, a similar discourse on authors developed. InGermany there were no copyright protections. Authors sold their books at aflat rate to publishers who then profited by reproducing them. No lawprotected German booksellers. Piracy became widespread as protection remainedminimal while literacy increased.[35] Theonly protection available to German booksellers was the "privilege." However, wrapped within the publisher's desire to protect its copyright is afundamentally new way of understanding authorship. As the economic advantagesof authorship grew, the author was able to sell his ideas in the marketplaceinstead of relying on patronage. A radical transformation in authorship wasunderway as the printers vied for better copyright protection. Instead ofideas originating with God, the concept of "original genius" developed: That is, inspiration came to be regarded as emanating not from outside orabove, but from within the writer himself. "Inspiration" came to be explicatedin terms of original genius, with the consequence that the inspired workwas made peculiarly and distinctively the product -- and the property -- of thewriter.[37] Inspiration becomes central in understanding how creation occurs. Asinspiration was centered, it transformed the writer into a unique individualresponsible for a unique product.[38] 18thcentury theorists re-made the author.[39]By making ideas the original creation of an author, it became logical that theauthor could own the resulting work. Of course, there were still problematic aspects of this new form ofauthorship. If the author can be assigned ownership of a book, then how canthe author turn this book over to the publisher to publish. Within the 18thcentury, theorists made the distinction between the physical object of a bookand the expression of the ideas within the book. The first is not the propertyof the author, but the "original creation" of the ideas remains personalproperty. [40] Rose and Woodmansee develop a perspective with far reaching implications forauthorship. The transformation of the author during this period is fundamentalfor understanding modern authorship. And, of course, the understanding ofauthorship emerging in the 18th century served the booksellers best. I should add that the mystification of the author also served the purposes ofthe ultimate proprietors of copyrights, the booksellers. The author might berepresented as a noble or a conqueror or a conjurer, but in most cases theproperty he brought into being quickly passed into the hands of thebooksellers, where it might increase greatly in value -- as the Thomsonproperties did in Millar's hands, more than doubling over the thirty years heowned them.[41] Because the booksellers were privileged by this new economic relationship, "thegoal of protecting the rights of the creative author is proudly asserted evenas the notion of author is drained of content."[42] What is concealed is who benefits from such a movementtowards sovereignty. AUTHORSHIP AS MALE The philosophy of intellectual property has its roots in Locke and Hegel andhinges on the definition of intellectual work as private property. Intellectual property is about masculine creation. Ideas, expressed throughthe labor of an author become property and possessed. Property generally, andauthorship more specifically, were masculine domains. Women, whose status asauthors was problematic long before the institutionalization of intellectualproperty laws, were discouraged from writing as well as from public life. Women who published faced a twofold problem. First, women were discouragedfrom printing because it did not fit with the societally accepted feminineideal. As Wendy Wall states, Women in early modern England faced tremendous obstacles in establishingthemselves as public figures of any kind. Literary and historical scholarshave dramatized these prohibitions quite glaringly in past years, as they havedocumented restrictions on female education; the link between public speech andharlotry; the definition of the woman's domain as that of domestic piety; theidentification of silence as a feminine ideal; and the mastery of rhetoric as amale puberty rite. Constrained by the norms of acceptable feminine behavior,women were specifically discouraged from tapping into the newly popular channelof print; to do so threatened the cornerstone of their moral and socialwell-being.[45] A second problem for female authors was the reliance upon a discourse whichmasculinized publication and feminized that which was published. By using the female body as a metaphor for the newly commodified book, bothbecame defined as unruly objects in need of supervision and governance. Whenthey imagined the female body as a medium for articulating power, whetherdismembered in poetic fragments or as a corporeal sign for the text, writersconsolidated their shaky social status as publishing writers. One result wasthe creation of a masculinized notion of authorship... If women were tropesnecessary to the process of writing, if they were constructed within genres asfigures for male desire, with what authority could they publish? How could awoman become an author if she was the "other" against whom "authors"differentiated themselves?[46] Thus, once booksellers got around to institutionalizing property rights inpublished works, women were already virtually excluded from authorship. The discourse which emerged when regulation for the book trade was needed waspremised upon male creation and birth. It is necessary to mark yourintellectual property through authorship and creativity. In Hegel'sphilosophy, property becomes an expression of the will and personality. The metaphors in which these earliest discussions of authorial property arecouched reveal something about the sources of a new discourse of authorship.In the sixteenth and seventeenth centuries, various figures were employed torepresent the author's relation to his writing, including the author as singingshepherd, tiller of the soil, vessel of divine inspiration, magician, andmonarch. But the most common figure in the early modern period is paternity:the author as begetter and the book as child.[50] All the metaphors are masculine ones. Each conceptualizes writing asmasculine. The paternity metaphor is significant for understanding copyright from afeminist perspective. It speaks to male creation and to the larger issue oflegitimacy. Copyright invites the author to own his work. The work is notonly the child of the author, but his property. Men were concerned withpaternity. Authorship was a method for establishing paternity over a text, themale creation. The metaphor of book as child became problematic when authorswanted to sell their labor in a marketplace. The metaphor breaks down becauseif the book is a child, and children are to be valued not sold, why would theauthor sell his work? The book as child metaphor gave way to the book as aform of landed property. However, the paternity metaphor helps illustrate whatlater metaphors help conceal -- literary creation is masculine creation. While women still became authors, Wendy Wall suggests they did so either atgreat expense, or by appropriating specific genres of writing considered"acceptable" for women. An acceptable genre for women was the will, becauseit was societally acceptable for dying woman to leave instructions to herchildren. Women appropriated this genre as an avenue into the public sphere asauthors. They created subversive avenues into the largely male dominatedpublic sphere.[51] Intellectual property emerged from a distinctly masculine history. Womenwriting during the Renaissance did so at their own risk. However, throughappropriating forms of authorship women continued to write legitimately. Whilethe author as male is no longer the central issue in modern society, there areother gender practices that must be discussed throughout this dissertation.For the purposes of this chapter, however, one cannot discuss the emergence ofthe proprietary author without noting that this is a male construction and assuch holds yet another dimension of power which must be considered. HISTORY OF COPYRIGHT: FRANCE The development of authorship described by Woodmansee and Rose does not standuncontested. Carla Hesse, studies the emergence of authorship and copyright in18th century France. While she does not reject Rose and Woodmansee'sconclusions, she argues that the French revolution provided a distinctlydifferent starting point for the debate over authorship. Two authorshipstories emerge in the French debate in comparison to the monological discourseidentified by Rose and Woodmansee. As Hesse notes, The French Revolution offered the occasion for an unusually explicit andfascinating debate in France about the identity and role of the author inmodern life, a debate whose legal resolution continues to provide thefoundation for French copyright law. A closer examination of this debate andits resolution throws into question some of the historical claims of Foucaultand his successors, and thus their characterization of modern cultural life aswell.[52] In France two discourses of authorship emerged. One was similar to the Englishand German experiences -- that ideas originate in the individual mind, "and notacquired through appropriation or labor, are the most natural and inviolableform of property."[53] This argument,Hesse agrees, is consistent with Rose's genealogy. France diverges from Germany and England because a viable second position onauthorship defended by Condorcet also existed. Condorcet argued against theindividual claim to knowledge as property. "He imagined an authorless world offree manipulation and circulation of information and ideas."[54] At this point, Hesse argues, Foucault's position,emulated by Rose, needs to be revised. It should be revised because in Francetwo discourses on the nature of the author emerged which constituted a tensionbetween the enlightenment view of ideas as property and Condorcet's notion ofknowledge as communitarian. In France, the Crown endorsed the notion of ideasas property and the will to overthrow the absolute author was the position ofthe French revolutionaries. Hesse's point is that the emerging discourse onauthorship was unstable from the beginning.[55] While I agree that the emergence of the author was significantly different inFrance, the same tensions emerge. These tensions are between greatersovereignty over the idea and greater exchange. Yes, the French were moreconcerned about the public good at this moment in history, while the Englishdid not find a notion of public good as compelling. However, even given thegreater influence of the public good argument, the tendency towards greatercontrol over ideas remained visible in the French debate. Ultimately, thenotion of the public good is crucial to understanding copyright law. So is thenotion of the proprietary author. These two tensions are the heart of moderncopyright. What Hesse does is provide is the second side to an ongoingstruggle between sovereignty and exchange. However, as Rose points out, hisstory is not totalizing, but ends in irresolution. The story that I tell ends -- or should be understood to end -- inirresolution. The eighteenth-century lawyers sought to fix the notion ofliterary property, and that project continues today in the vast legalliterature devoted to such problems as exactly where to draw the line betweenidea and expression or exactly how to define the nature of "fair use." Theargument of this book suggests that all such attempts are both futile andnecessary. Futile because the concept of literary property is itself finallyan oxymoron. But necessary because the institution of copyright is deeplyrooted both in our economic system and in our concept of ourselves. These important words are ignored. What Hesse helps illuminate is thepolitical struggle between contending discourses on authorship. At any pointin history, one will prevail over the other. Mark Rose argues that a discoursefavoring publishers is the result of the English experience. It will be clearthat these tensions continue to prevail today. HISTORY OF COPYRIGHT: A FINAL ARGUMENT Pamela O. Long turns to 13th Century Italy for a different interpretation ofthe development of intellectual property and authorship. Long criticizes Rose,Woodmansee, and Hesse, for taking too narrow a view of copyright and itsrelationship to authorship. She states, The work of these scholars constitutes significant and sophisticated analysisof 18th-century copyright issues. In my view, however, they oversimplify theprior history of intellectual property and authorship. They are able to dothis by defining copyright too narrowly as the moral right of authors overtheir own literary productions within the framework of Lockean notions ofnatural rights, and the 18th-century commercial book market. Yet copyrightconcerns the notions of intangible property, limited monopoly, social utility,and the perogatives of authors over their writings before John Locke'sformulation of natural rights, as well as the issues noted above. Even for the18th century, as the legal historian Jane C. Ginsburg has demonstrated,author's rights do not always occupy a central place within legal history. Long's critique about focusing too narrowly on copyright as literary work iswell taken. However, construction of an author's moral right is not the onlyissue. An equally important issue is the development of a significantlydifferent approach to knowledge production which depended upon authors asowners. The text is redefined as a bounded entity which is no longer an 'act,'but an 'object.' This is an important transformation. Prior to the 18th century, proprietary authorship was far from accepted inEngland or Germany. While a market economy emerged earlier for tangibleobjects, a book market was late in arrival. Woodmansee and Rose wouldprobably agree that the printing press several centuries earlier was criticalin the developing discourse on authorship. It was only at the moment whenauthor's rights could be used instrumentally by the booksellers that theybecame an issue, however. This crucial watershed was reached when printersrealized they could no longer maintain a monopoly over printed work, whichhappened in England with the passage of the Statue of Anne. It is important toremember that copyright emerged because of the economic interests of thebooksellers. The emergence of print as a significant social medium allowed forthe debate over economic controlling forces to be played out in the 18thCentury. The tension between sovereignty and exchange emerged, especially inFrance, and was settled in favor of sovereignty. The notion of the proprietaryauthor emerged as victorious, resulting in better protection for thebooksellers. The impact of the discourse of original genius and authorship obscures that"cultural production is always a matter of appropriation and transformation." Copyright lacks a strong conceptual history because it emerged as a legalframework with a specific task. While it draws upon the philosophy of thetime, including Locke and Hegel, copyright generally was designed with autilitarian function in mind. In creating such a utilitarian law, however,those arguing for strong protection produced the proprietary author which didnot reflect the manner in which written work is produced. It is a concept usedstrategically over the centuries to produce favorable results for itsbeneficiaries. There is a large gap between legal definitions of authorshipand literary definitions.[59] The Americansituation does nothing to diminish this gap instead reproducing the assumptionsof authorship in Europe. AMERICAN COPYRIGHT LAW By the time America began thinking about intellectual property, most of thenarrative work had been done and the resulting discourse was accepteduncritically as truth and factual. Property rights were a central issue in theemerging American States. Justin Hughes writes: ...Ideas about property have played a central role in shaping the Americanlegal order. For every Pilgrim who came to the New World in search ofreligious freedom, there was at least one colonist who came on the promise of aroyal land grant or one slave compelled to come as someone else's property. Concern over property is evidenced in the emphasis placed upon this conceptduring the constitutional debates between the Federalists and theAnti-federalists.[61] The Americanfounders were primarily concerned with tangible property, meaning land,businesses, and even people. However, Americans also brought with them anotion of intellectual property that was quickly codified. Paul Goldstein's Copyright, Patent, Trademark and Related StateDoctrines provides the cases necessary to understand how copyright isinterpreted in the United States and one crucial historical fact -- that theEnglish copyright system was adopted by the American colonies.[62] The notion of an author's right crossed the ocean, asdid the tension between sovereignty and exchange. Patterson breaks Americandevelopment of intellectual property law into four stages, each of whichemphasizes a different perspective on copyright. American copyright includes: State copyright statutes, a constitutionalprovision, the federal copyright act of 1790, and the precedent setting case ofWheaton v. Peters in 1834.[63] Thefour ideas and corresponding protections were: The idea that copyright is primarily for the benefit of the author was centralto the state statutes; that copyright is necessary for learning was central tothe constitutional provision; that copyright is a government grant (orstatutory privilege) was central to the first federal copyright act; and thatcopyright was to prevent monopoly was central to the Wheaton case. Through a variety of different channels, the American's incorporated all theperspectives of copyright within their law. Every state had written provisions to grant copyright protection to authorswho were citizens of the United States prior to the U.S. constitution. The first Federal Copyright Act passed May 31, 1790. This act was designed toprotect printed work from piracy and protected maps, books, and charts with a14 year term. A 14 year renewal was provided for living authors. Indeed, nature's intention seems to be the opposite. "Ideas should freelyspread from one to another over the globe, for the moral and mutual instructionof man, and improvement of his condition..." This is why nature made ideas,"like fire, expansible over all space...and like air...incapable of confinementor exclusive appropriation." Societies may choose to protect the property ofideas in order to encourage useful inventions. Elsewhere, Jefferson indicatesthat he approves of such protection, but there is no natural right to theprotection of this form of property.[70] Because a natural rights philosophy held little weight, and indeed an attitudeof exchange was supported, protection in the United States became exclusivelystatutory. Authors had a statutory right to protection, in order to provideincentive for innovation, but there was no moral or natural right. This is adivergence from the English law which continued to be persuaded by a common-lawauthor's right, even if statutory law took precedence. The Copyright Statute of 1790 was amended in 1802 to allow, among otherthings, protection for prints. It was amended in 1831 to extend protection tomusical compositions and extend the term of protection to 28 years. It wasamended again in 1834. The first important copyright case was Wheaton v.Peters in 1834. The landmark decision of Wheaton v. Peters closely mirroredDonaldson v. Beckett. The Court concluded there was no common lawcopyright and that statutory protection could only be obtained by adhering tothe 1790 act.[71] The Court confirmed thatcopyright was a privilege, not a right.[72]This case was about protection against monopoly and established the Englishprecedent in the United States. While the United States rejected what laterbecame an author's "moral" right, it affirmed the economic rationale forcopyright. The proprietary author unproblematically found its way intoAmerican copyright law. Today, the growing trend in property rights discourse is towards intangibleforms of property. A less frequently discussed trend is that historically recognized butnonetheless atypical forms of property, such as intellectual property, arebecoming increasingly important relative to the old paradigms of property, suchas farms, factories, and furnishings.[73] In part this trend reflects the commodification of abstractions such as music,art, literature, and ideas. Where once a discourse of tangible propertydeveloped in order to protect the interests of those in the position to acquireproperty, now a discourse of intangible property is used to privatize theintangible. The discourse of private property is used to expand the scope ofwhat can be owned, or, in other words to extend sovereignty. U.S. law has undergone numerous changes in order to expand protection tomusic, paintings, drawings, motion pictures, sound recordings, and mostrecently computer software.[74] TheCopyright Act of 1976 was signed into law by President Ford and marks the mostrecent statutory manifestation of copyright.[75] In 1989 the United States complied with the BerneConvention for the Protection of Literary and Artistic Works. A major hurdle to U.S. compliance with the Berne Convention was the differencebetween moral and utilitarian rights of authorship. When aligning itself withthe Berne Convention, the United States explicitly rejected the moral rightsposition on copyright. The Berne Convention protects moral rights, but theUnited States, in a departure from European law, understands copyright asutilitarian.[76] The Berne Convention inArticle 6bis gives the author "the right to claim authorship of thework and to object to any distortion, mutilation or other modification, of, orother derogatory action in relation to, the said work, which would beprejudicial to his honor or reputation."[77] This moral right of authorship relies upon the naturalright notion of property.[78] As discussedabove, the United States rejected the natural rights philosophy as it appliesto intellectual property. I would assert, however, that the rationale for rejection today issignificantly different than the 18th century reasoning. The 18th centuryreasoning was reliant on a belief in exchange of ideas for the promotion of abetter society -- the enlightenment ideal. Today, the United States isconcerned with protecting an economic system. Our intellectual propertysystem, like the London booksellers, uses the author as justification forcontinued support of copyright law. The traditional story of copyright asprotecting the individual creative author is endlessly repeated in order toaffirm the commonly shared rhetorical vision of copyright. The claim isconstantly made by US industries that absent copyright protection authors wouldlack incentive to produce creative work. The repetition of the copyright storyensures its continued acceptance as new generations of government officials andbusinesspeople uncritically accept the assumptions of intellectual propertywithout knowledge of its specific historical context. THE TRADITIONAL STORY OF COPYRIGHT By the traditional story of copyright I mean the reasons given for whycopyright exists and works. The law helps spread this story as truth, inessence makes it a rhetorical vision, by providing an avenue of action and aform of punishment for those disobeying. Thus, while a story such as copyrightbegins as a localized (or specialized) discourse, it becomes something everyonemust pay attention to when the law brings it into contact with our everydaylives. The story begins with the individual proprietary author -- let's say myself.I have been inspired by an idea and want to express this idea either inwriting, paint, photography, or some other expressive medium. What makes itpossible for me to express the idea is the system of copyright that protectsthe expression as my own. I am ensured under American copyright law that if mycreation is a valuable one I will have an opportunity to benefit and be theproprietor of the bundle of sticks constituting intellectual property rights.Copyright, in the traditional story, gives me the incentive to produce acreative work and make it available to the public. It is a simple story with only a few parts. First, an author is inspired byan idea. Second, the author expresses this idea in a tangible form. Third,the idea is the proprietary work of the author, meaning no one else can copy,distribute, or borrow from the work. Fourth, the author is protected viacopyright, which provides the atmosphere in which creation can take place. Asthe author is creating, there are numerous villains waiting to pounce upon thenew idea and use it to benefit themselves. These villains include plagiarists,thieves, and pirates who have no respect for author's rights. Jeremy Waldrondoes an excellent job of encapsulating the traditional story: The reasoning goes like this. The overall social good is served by theprogress of science and useful arts. The progress of science and useful artsis served by the encouragement of authors. The encouragement of authors issecured by providing them with the incentive of legally secured monopolyprofits from the sale and circulation of their works over a limited period oftime. Incentives work by conferring benefits on those whose activity we aretrying to encourage. Such a benefit may be seen as a reward for their efforts.Rewards are what we characteristically provided for moral desert; we reward thedeserving and penalize the undeserving. Therefore, authors deserve theintellectual property rights that are secured to them in the name of socialpolicy. The thought moves from encouragement to incentive tobenefit to reward to desert, so that something whichstarts off as a matter of desirable social policy ends up entrenched in animage of moral entitlement.[79] Missing from the traditional story is the step where the author transfers theirbundle of sticks to the publisher who then holds sole proprietary interest overthe work and continues to profit with very little going back to the author. What would an alternative story look like? Much of chapter eight is dedicatedto this proposition. However, keeping in mind that copyright is a tensionbetween sovereignty and exchange of ideas an alternative story might place moreemphasis on creation and less on ownership. Authors, poets, musicians,artists, and academics are rarely motivated solely by economic incentives.Only through a process of commericalization has copyright come to meanprotection for economic gain. Thinkers such as Condorcet and Jeffersonembraced the enlightenment tradition of the free flow of ideas. The exchangeof ideas, if given precedent over the ownership of ideas, establishes adistinctly different framework through which to view "property." It is thefree exchange of ideas which is the premise of an alternative story. Theissues and premises of an alternative story of intellectual property will bediscussed in later chapters. It is mentioned here in pre-view form only inorder to establish the tension which can exist between copyright and itsalternatives. In this chapter I have attempted to provide an overview of the traditionalcopyright story. Critical to the traditional story is the concept of aproprietary author, the original genius working as an individual unit toproduce creative work. The next two chapters bring us into the present, wherenew technology is challenging the assumptions of the traditional story byproviding avenues for actions which subvert the control of copyright. Thesechapters illustrate how new technology is gradually being incorporated into thetraditional story in an effort to avoid the possible transformation which canoccur if information is allowed to flow freely. The traditional copyrightstory, which emphasizes sovereignty wishes to transform citizens who carelittle about ownership of creative work and information into good consumers ofinformation who will respect the boundaries of intellectual property.