The Gifting Logos. E. Johanna Hartelius
commercial privilege, copyright was from the very beginning associated with the production of stuff. In Venice in 1469, the five-year printing privilege extended to the German printer Johannes von Speyer was not different in kind from the contracts extended by the Venetian authorities to other craftsmen. Like them, Speyer made and sold a material product. The exclusivity of the process by which the product was made ensured profit. Joanna Kostylo describes how “makers of soap, of gunpowder and saltpeter, of glass” petitioned for trade monopolies on “every imaginable subject, from devices for draining marshes to windmills and poisons, or culinary experiments such as special kinds of lasagna in an Apulian style and new types of dumplings filled with meat and fish.”6 Using the screw press, Speyer made text just as others made wine and olive oil. In the Speyer story of copyright origins, the text content itself is beside the point. Of far greater importance is the manufacturing technique that produces stuff, specifically text in Speyer’s case. When two hundred years later another entrepreneur named John Usher secured an ad hoc discretionary grant to publish the laws of the colony of Massachusetts, his relationship to the local authorities was similar to Speyer’s, insofar as he, too, sought primarily to make stuff for profit. Usher’s printing privilege was indistinguishable from those extended in Massachusetts to industrious men who made salt or operated ferries.7 Speyer and Usher in their own times manufactured text as a commercial object.
Origins and Regimes of Control
As copyright from the beginning was about the production of stuff, so were the ancien régimes of copyright about exercising institutional control. In the Venetian case, mercantile guilds of printers and booksellers served as a mechanism for oversight.8 The same structures that were put in place in the early sixteenth century to retain commercial advantages for Venice’s prosperity, preventing craftsmen’s individual entrepreneurship, effectively enabled state-sanctioned censorship.9 As copyright historian Mark Rose notes, the Venetian system was exported to several European countries, including England. There, a royal charter in 1557 authorized a guild of book binders and publishers called the Stationers’ Company to oversee published materials, moderating the circulation of anything that might be construed as “illicit, antigovernment publishing.”10 The powerful company’s “monopoly on the British book trade” was solidified a few years later with the Licensing Act of 1662, which made it illegal to publish any text without special permission.11 This law also restricted the import of published materials and limited the number of active presses and printers. For five decades, the Stationers’ Company policed libel, sedition, heresy, and treason, managing the commercial as well as the ideological aspect of the British book industry.
The Stationers’ Company’s authority and usurpation of profits drew the ire not only of booksellers and printers excluded from the royal arrangement but also of authors. Not unlike in the twenty-first century, creators of cultural content resented the state and corporate powers that constrained them. Amid the late seventeenth century’s general prosperity and increased literacy, what Rose describes as an “emergent ideology of possessive individualism” prompted authors to critique the fundamental presumption of the Stationers’ Company.12 Questions arose: What rights to the creative accomplishments of an especially gifted individual should a commercial guild have? To whom do ideas belong? Prominent literary figures made their case for the cause: in the polemic Areopagitica in 1644, English poet John Milton extolled the benefits of books and condemned the royal licensing system. To Milton, censorship, although it may prevent infectious material from corrupting the public mind, obstructs discovery and truth. Likewise, John Locke, a staunch critic of the Licensing Act, argued in Two Treatises of Government in 1690 that a person’s natural right to the property that results from his (or her) labor is inviolable. The social order’s first task, according to Locke, is to protect individual property. Notes Rose, “The representation of the author as a creator who is entitled to profit from his intellectual labor came into being through a blending of literary and legal discourses in the context of the contest over perpetual copyright.”13 The British Parliament did not renew the Licensing Act in 1694.
What happened next is the watershed moment in any historical account of copyright: In 1710 the Statute of Anne went into effect. The two most significant consequences of the statute, whose full title was “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,” were that authors could be designated as the proprietors of their texts and that the privileges associated with such proprietorship, including those enjoyed by the Stationers’ Company, were time limited.14 The implications of the statute for the Stationers’ surveillance powers and their relationship to authors is the topic of some scholarly dispute. What appears to have been a definitive victory for authors and a recognition of individual author(ity) may have brought with it some unintended consequences. Prior to the passage of the statute, policing authors was an elaborate task that required cunning and guile. Jody Greene describes how Sir Robert L’Estrange, frustrated with the Stationers’ impotence and lack of commitment to penalizing authors, invented an intricate intelligence-gathering system that implicated not only those who wrote illicit books but also those who, when discovered in possession of them, refused to provide information about the author. The Statute of Anne, Greene argues, expedited almost universal regulation: “It did so not by inventing new means of tracking down authors but instead by encouraging authors, in effect, to give themselves up voluntarily.”15 When the statute was later used as a model for other copyright legislation, including in the United States, this precarity of authors’ rights remained.
Property and the US “Copyright Clause”
The significance of material property in the history of copyright—what I have discussed as a close relationship between exclusive rights to manufacture text and exclusive rights to produce stuff (such as windmills, dumplings, or salt)—is evident not only in certain colonial arrangements, including those that benefited John User of Massachusetts, but in the original language of the US Constitution. As an outcome of the Constitutional Convention’s deliberations in the summer of 1787, much of which centered on strategic protections of individual property, the so-called copyright clause connects copyrights with patents. Article 1, section 8 of the Constitution affirms that “Congress shall have Power [. . .] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries.” Not surprisingly, the exact meanings of “promote,” “progress,” “useful,” and “limited times” have given legislators heaps of trouble. The latter is especially vexing, and later in this chapter I discuss the continual extension of copyright terms throughout the twentieth century. Suffice it to note here that the language recommended by the Congressional Committee of Detail not only links science (including knowledge and inquiry generally) with useful arts, which in that time must be thought of as artisanal and craft based, but also contextualizes the protection of material property (such as land) alongside the protection of what would later be called “intellectual property.”16 When Congress acted on its constitutional authority by passing the 1790 Copyright Act, it protected individuals’ rights to such useful intellectual property as “maps, charts, and books.” Simply put, making stuff and knowing stuff are protected by the same constitutional clause, which emerged in a discussion of property as a source of power.17
During the politically and culturally formative years of the United States from 1790 to the Civil War, copyright was relatively small in scope. Many of the printed works that circulated did so without copyright. In some cases the texts were translations of English or French works, to which the 1790 act did not apply. Other texts were adaptations or abridged versions of a more well-known story or play, which were likewise permissible. Some authors simply did not seek copyright for their works since, as Meredith McGill notes, restrictions on the already difficult distribution of printed text were imprudent for authors wanting to reach a wide audience.18 In other words, copyright was subordinate to the goal of publicity. In her study of “reprinting” culture in the antebellum period, McGill argues that the circulation of unauthorized reprints stimulated a culture consistent with the nationally budding republicanism. She explains that a “belief in the inherent publicity of print and the political necessity