Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain
Rose, Mark, Law and Contemporary Problems
To compare the present moment in the history of intellectual property to the English enclosure movements of the early modern period, as James Boyle and others do, is to employ a version of a metaphor that reaches back to the early history of copyright in the late seventeenth and early eighteenth centuries--the literary work as a kind of landed estate. (1) Embedded in this metaphor is an implicit narrative about the origin of copyright, a version of the familiar Enlightenment narrative about the origin of landed property in general. In the beginning, so the story goes, all the literary world lay free and open, but then various parts were settled and enclosed and literary property came into being. The story implies that the public domain, the literary commons, precedes copyright. But this is not quite the case. By 1557, when the Stationers' Company was chartered, printing and publishing had already become a highly regulated activity in which rights to print books of all kinds, both new and old, were either ass igned directly by the crown or managed by the Stationers' Company. (2) True, many aspects of writing lay open in the pre-copyright period. Shakespeare, for example, had no hesitation about appropriating others' works in ways that would clearly constitute infringement today. So far as printers and booksellers were concerned, however, the book trade was regulated in all its dimensions, including such matters as the number of presses a printer might own and the number of apprentices and journeymen he might keep. Thus, even such Latin and Greek classics as Aesop, Cicero, Ovid, Terence, and Virgil were protected titles, the property of the Stationers' Company itself, which could assign individual books to whichever guild members it chose for printing. (3) We must be cautious, therefore, about projecting into the past an idyll of communality from which we have supposedly declined. The absolutist regimes of the Tudor and Stuart monarchs were characterized by pervasive regulation, and they were very different from th e post-revolutionary civic society in which copyright law emerged.
CIVIL SOCIETY AND THE BIRTH OF THE PUBLIC DOMAIN
Copyright and the public domain were born together. They were formed in the course of the long social process that Jurgen Habermas identifies as the emergence of the "public sphere." (4) This process involves the circulation of cultural products as commodities rather than as displays of aristocratic magnificence, and it involves a sense of civil society as a collectivity distinct from either the private realm of the family or the public realm of the state. The emergent sense of civil society was crucial to the transformation of the old regime of royally chartered regulation into the new regime of property rights defined by the legislature and the courts. It was also an important rationale for the limited term of copyright, a limitation that brought the public domain into being. As Samuel Johnson remarked in conversation in 1773:
There seems. . . to be in authours a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual; but the consent of nations is against it, and indeed reason and the interests of learning are against it; for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation. No book could have the advantage of being edited with notes, however necessary to its elucidation, should the proprietor perversely oppose it. For the general good of the world, therefore, whatever valuable work has once been created by an authour, and issued out by him, should be understood as no longer in his power, but as belonging to the publick; at the same time the authour is entitled to an adequate reward. This he should have by an exclusive right to his work for a considerable number of years. …