The Trouble with Ownership
Literary Property and Authorial Liability in England, 1660-1730
2005 | 288 pages | Cloth $59.95
Literature | Law
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Table of Contents
PART I. THE TROUBLE WITH OWNERSHIP
1. Authorship and the Regulation of the Press
2. The Trials of Ownership: Finding the Author in Court
PART II. THE DANGEROUS FATE OF AUTHORS
3. Daniel Defoe, the Act of Anne, and the Obligations of Ownership
4. Revenge of the Straw Woman: Disowning The Dunciad
5. Hostis Humani Generis: Owning Polly
Excerpt [uncorrected, not for citation]
A new historical understanding of print is needed. What will it look like? One immediately evident feature will be its regard for the labors of those actually involved in printing, publishing, and reading. Another will be its respect for their own representations of printing, embracing both its prospects and dangers. The dangers in particular will loom larger and more substantial than they have hitherto. Historians tend to disregard such perils as accidental. Early modern readers and writers knew otherwise.
—Adrian Johns, The Nature of the Book
The story of modern, proprietary authorship is by now a familiar one. In the English context, it goes something like this: the period from 1660 to 1800 saw an explosion in new opportunities for authors unparalleled in the history of authorship. Increases in literacy, the growth of cities, falling paper prices, the influx of international commercial capital, the end of prepublication censorship, and above all, the newfound willingness of authors to make their work public transformed British literary culture from a courtly côterie into a thriving marketplace. In addition to these expanding material, commercial, and cultural opportunities, authors for the first time found themselves endowed with rights. A notion of literary property emerged in this period that transformed the relation between author and work, in the words of Mark Rose, into one of "proprietorship." Authorial copyright, albeit in a most rudimentary fashion, was codified for the first time in the "Copyright Act" of 1710, in a move that established the author, in Rose's formulation, as "a legally empowered figure in the marketplace" (4).
The "Act for the Encouragement of Learning," as the Copyright Act was formally known, has been described by recent commentators as a kind of historical accident, "an entirely contingent means," in the words of David Saunders and Iain Hunter, "of regulating the unstable technical, economic, and cultural capacities created by a new apparatus of literary production." The Act, they write, was only tangentially designed to address the needs and rights of authors, and offered little more than a "makeshift solution" to a whole range of commercial and legal problems confronting the print trade and the authorities who took it upon themselves to oversee that trade (485). Nonetheless, the Act had profound effects on the practice of authorship, in addition to its effect on the organization of the trade as a whole. In the first place, the Act was important because it conceived of an author's primary—even aboriginal—relation to his or her work as a matter of ownership. Although the nature of the proprietary relationship is never spelled out in the Act, the phrase "Proprietor or Proprietors" stands in, after the opening lines, for the author, as well as for the printers, booksellers, and others whose interests might be covered under its provisions. Living authors were henceforth considered to have control over their property, in the form of an exclusive right to determine who was to copy the work. This right was alienable for a fixed term, no longer passing to the buyer in perpetuity. Authors were permitted to retain the right to control the reproduction of their works as long as they could afford to publish without the aid of a third party to put forward the printing costs and act as an intermediary with the book trade. Should the author find it necessary to sell or otherwise part with this copyright, however, he or she could assign it to anyone, not only, as had previously been the case, to a member of the Stationers' Guild. This single change in the law may have had the greatest effect on the organization of the book trade, as Lyman Ray Patterson remarks in Copyright in Historical Perspective. "The radical change in the statute," he writes, "was not that it gave authors the right to acquire a Copyright—a prerogative until then limited to members of the Stationers' Company—but that it gave that right to all persons." Henceforth the Company's monopoly on the trade in printed materials would be broken, although Company members continued to wield significant commercial weight throughout the eighteenth century. Moreover, although it remained the norm for most authors to sell their copyright, since most did not have access to the means of printing and publishing their own works, it was tempting for authors to try to eliminate the publisher's potentially lucrative role in this process, whether by keeping the copyright themselves or by attempting to reassign the right to a member of the trade willing to share the profits more equally than the traditional stationer. This, as later chapters show, was a favored strategy of that great authorial innovator, Alexander Pope, and also of his unlikely comrade-in-arms, John Gay.
Yet authors quickly found that the "Copyright Act" had consequences not only for authorial rights, but also for authorial liability. The lapse of the Licensing Act in 1695 had left something of a vacuum in the enforcement of press regulation. Although the licensing system had been only haphazardly effective in its final decades, and although the law regarding postpublication crimes such as libel and sedition remained unchanged, the absence of prepublication oversight made illicit, antigovernment publishing easier than it had been under the watchful eye of the licenser. In particular, it allowed for the rapid growth of periodical literature, including newspapers and weekly gazettes and reviews, the control of which preoccupied the government consistently from 1695 until the passage of a tax on periodicals in 1712. Above all, the disappearance of a centralized regulatory authority threatened to let forth a flood of wholly anonymous works—works with no information whatsoever on their title pages—as well as those sporting false imprints misidentifying the author, printer, bookseller, place of publication, and/or date of release. While all of these features could be falsified under the prior system, doing so was more difficult when a figure like Roger L'Estrange, with his own intimate knowledge of the ways of the trade, was at work surveying the press on a daily basis, as he was from 1663 until he was finally relieved of his duties in 1688.
Until the lapse of the Licensing Act, the stationers—with the help of government appointees such as L'Estrange—had been responsible for both the commercial and the ideological regulation of the book business, in a systematic tradeoff of rights and responsibilities that had been in effect since the charter of the Stationers' Company in 1557. After 1695, and especially after 1710, however, these two functions—call them "copyright" and "censorship," though neither term is satisfactory for covering the range of proprietary and regulatory interests described in this volume—were now no longer carried out by one centralized body, but were instead, at least according to almost all recent commentators, split off from each other. Rose goes so far as to argue that "the passage of the Act marked the divorce of copyright from censorship" (48). In so doing, he joins a long line of those who have seen in the relationship between these two regulatory functions an unhappy family romance. Rose himself describes the relationship between "censorship and trade regulation" after 1557 as a "marriage" (13). During the seventeenth century, he continues, they began to effect a "separation" that was only made complete in the divorce of 1710 (16). Fredrick Seaton Siebert takes the familial metaphor further by noting that the putative split left progeny, children of divorce, in the form of the generations of copyright legislation extending into the present:
Henceforth the protection of property rights in printed matter was divorced completely from any attempts at control of the content or quality of such printed matter. The sire of the Act of 8 Anne was the Printing Act of 1662; its progeny, the series of copyright acts in England and the U.S.
Siebert's reproductive formulation at least has the benefit of making it possible to postulate, through a kind of genetic analogy, the persistence of ideological regulation in intellectual property law. If the Licensing Act of 1662 truly spawned the Act of Anne, then some resemblance between the "sire" and his offspring should be visible, some trace of copyright's roots in censorship still left for historians to follow.
Historians, however, have been resistant to recognizing the persistence of ideological regulation in authorship's new proprietary formation. Without exception, in fact, scholars of the book have declined to acknowledge what all early modern commentators on the topic, whatever their political stripe, took for granted: that is, that "owning" one's book was synonymous with owning up to it, and that literary property was thus inseparable from regulation. In the words of Daniel Defoe, whose 1704 Essay on the Regulation of the Press makes an argument for authorial property rights that is grounded in assumptions about authorial liability, "'Twould be unaccountably severe to make a Man answerable for the Miscarriages of a thing which he shall not reap the Benefit of." Authors, Defoe insists, in a battle he would ultimately lose, should be required to set their names to their works, not only to put a stop to the "licentious Extravagance of Authors" (3) but also to record their "undoubted exclusive Right of Property" to their books (21). Even if compulsory authorial imprints remained undesirable to his contemporaries in the book trade, however, Defoe's recommendations concerning the compatibility of "censorship" and "copyright" would ultimately find their way into the Act of Anne, which continued the longstanding regulatory practice of balancing rights and responsibilities in matters related to the press.
To claim responsibility for a work after 1710 was not only to advance a proprietary claim, this study argues, but also to admit liability for its contents. Insofar as the Act of Anne constituted a method for keeping track of those responsible for literary works, it also put into effect a system of recording liability for them. Specifically, the Act made a provision for continued oversight of the press, in its recommendation that all works should be entered in the Stationers' Register prior to publication, despite the fact that the Stationers no longer held their traditional monopoly over the trade. Ostensibly, the Act of Anne was designed to put a stop to the piracy of literary works. In order to be able to combat such piracy, it was necessary to devise a means of recording who held copyright in a literary work, when that copyright was assigned, and for how long it was guaranteed. The drafters of the Act turned to the Stationers' Register to fulfill this recording function: "The Register was to be the official record of copy ownership," John Feather writes, "and entry was, apparently, to be required as a precondition of claiming and defending rights." Entry was not to be compulsory for all works, as it had been in the past; rather it was necessary for anyone who wanted to guard their proprietary interests against competitors. Entry, that is, seems to have been designed to protect rather than to regulate authors and other holders of copyright.
Yet almost by accident the Statute succeeded in installing a form of press regulation, even if it did not address itself directly to the question of crimes and punishments. Authors, as Pope's case amply demonstrates, considered a claim to copyright to be a sure means of tracing responsibility for a literary work, especially a literary work that might by its very nature be deemed dangerous or legally actionable. In keeping with the provisions of the Act, the authorities need only turn to the Register to find a record of the transfer of "the Title" to any book published after the Act went into effect. Included in this entry must be the "Consent of the Proprietor"—which is to say, in nearly all cases, of the author, for this transfer of title. The requirement of authorial consent, ostensibly designed to combat piracy for all those in the book trade and to protect the proprietary rights of authors, thus acted equally effectively as a means of controlling authors. Claiming and defending rights required authors to assume obligations as well; owning one's book could just as easily be construed as a confession of responsibility. The new benefits attached to authorship did not come without a cost, then, as authors found themselves subject to liabilities that made their profession as hazardous as it was newly lucrative.
The experience of individual authors who tried to use the Act of Anne to their own advantage—authors such as Pope and Gay—also suggests that whether or not the Act was intended to further the cause of press regulation, it succeeded in doing so. In fact, the provision concerning entry in the Register remedied the greatest single problem that had faced would-be controllers of the English press for more than fifty years: the difficulty of finding and holding liable the authors of printed works, rather than their more easily located printers and distributors. These members of the book trade leave material traces of their participation, while authors, especially careful ones, do not. As L'Estrange attested in his 1663 tract, Considerations and Proposals in Order to the Regulation of the Press, "Touching the <>Adviser, Author, Compiler, Writer, and Correcter, their Practices are hard to be Retriev'd." Or, in the words of Chief Justice Scroggs in the1680 trial of Henry Carr, accused of writing and publishing a libelous pamphlet, "It is hard to find the Author, it is not hard to find the Printer: But one Author found, is better than twenty Printers found." The Act of Anne made finding the author—retrieving his or her practices-not only possible, but virtually infallible. It did so not by inventing new means of tracking down authors, but instead by encouraging authors, in effect, to give themselves up voluntarily. By holding out the incentive of literary property and its attendant benefits, the Act of Anne succeeded—as 150 years of legislation and royal prerogative had not—in luring authors into owning their part in what was still, in 1710, a surprisingly risky business.
Authorship and the History of the Book
Readers familiar with the field of book history, as well as the history of authorship, will already have noted the degree to which the project of this book runs counter to current trends in both of these fields. Much of the work of the past two decades has been devoted to unseating the author from his place at the center of the history of the book—a liberal, masculinist, individualist history, these critiques contend, which, at least in its earliest formulations, failed to do justice both to the actual structure of the book trade in early modern England and to the contributions of the many individuals involved at all levels of that trade. In particular, as scholars like Paula McDowell and Marcus Nevitt have shown, a myopic attention to authors in the history of printed works has left the role of women in the early modern book and pamphlet trade almost entirely unwritten. At the same time, it has erased the contributions of working men and women to the early development of literate culture-a point most compellingly made by Adrian Johns in his revolutionary study, The Nature of the Book. Through the work of scholars such as these, what might have remained a problem in the local history of the book thus becomes part of a larger problem in early modern social history, including both women's history and the history of the working classes. In these invaluable studies, the entire industry devoted to what is currently called "knowledge production" is reconceived as a collaborative, collective, frequently anonymous project.
In her influential reconstruction of the workings of the London book trade after 1680, The Women of Grub Street, McDowell insists that she is proposing nothing less than "a new model for the study of the literary marketplace as a whole" (12). In specifying what exactly is new about her model of print historiography, she singles out the author as the figure for everything that is wrong with the older model she hopes to displace:
Authors who print their writings are not the only labourers involved in the production of their texts; nor can authors be understood in isolation from the publishing institutions within which they work. Twentieth-century literary critics' interest in bourgeois subjectivity and the rise of individualism has meant that dominant literary critical models emphasize individuals (especially authors). But traditional "man-and-his-work" approaches, with their post-Romantic emphasis on individual authors, are not the most useful models for the study of non-élite men's and women's involvement in the print marketplace. This is especially true of literature in politically tumultuous periods, when authors, publishers, and other printworkers often worked closely together. (12)
There is no question that McDowell is correct on all counts—correct about the near exclusive focus that early literary historians placed on authorial individualism; correct about the collective responsibility for printed works in all periods, but especially in "tumultuous" periods such as the one that followed the Restoration of Charles II; and correct about the way in which a focus on the author masks the participation of all sorts of historically invisible cultural laborers, not only in making books but in making meaning in early modern England. If anything, McDowell here speaks in too limited terms of the stakes of her project, for it is surely not only those interested in "the study of non-élite men's and women's" roles in print culture who stand to benefit from the recognition that the author is not a singular individual with sole power to determine meaning through autonomous acts of literary creation. The author, as Nevitt notes in an influential article on women and early newspapers, is only one figure in the "collective enterprise" of early modern publishing, and to recognize him-or her-as such is to remake not only the history of the book trade but cultural history as a whole (87).
As Nevitt goes on to specify, condensing the insights of McDowell's longer study, this collective characteristic of the book trade had notable consequences for questions of liability and accountability, especially in periods when dangerous books were being produced and circulated. "Th[e] overlap between authorship, publishing, and printing," he writes, had both economic and legal consequences, since "whilst costs could be cut, it also made the job of a censor or licenser more difficult." (86) Rather than being able to determine a single agent liable for any dangerous work, or even to identify the possessor of what Nevitt calls the original "seditious intention" (86), the licenser or other "censoring" agent was presented with a whole range of figures to whom partial liability could be attributed. This proliferation of suspects meant more individuals to prosecute, more sites to keep under surveillance, and more possible lightning rods for the mobilization of public sympathy—a lament taken up by L'Estrange in his Considerations and throughout his career. Wherever possible, government forces tried to be frugal with their labor by centering liability for a printed work in one figure—most frequently, in any person whose name could be positively linked to that work, regardless of "seditious intention." In most cases, this meant that the printer or publisher was subject to prosecution, rather than the author, since it was those agents whose names appeared on the title page of virtually every work that came off the presses in the early modern period. Nevitt thus concludes, after looking at a series of seventeenth-century seditious libel cases, "as it was the printer who affixed his/her name to frequently anonymous works, and was accordingly punished, it was printers who were frequently tarred with the brush of originative agency" (104 n.12).
Given my virtually complete agreement with the insights of McDowell, Nevitt, and critics like them committed to a better understanding of the workings of the early modern book trade in general, and the regulation of printed works in particular, it can only seem perverse to insist, nonetheless, that the figure of the author had not only a central place in the regulation of that trade, but a privileged one with relation to the trade's other members. The ability to make such a counterintuitive argument depends upon drawing a distinction between a set of material historical events—who actually produced printed works? Who faced indictments, prosecutions, and punishments as a result of those works?—and another kind of history, a history of the discourse surrounding responsibility for printed works, which tells a rather different tale both about attribution and about accountability. To study this alternative history is not in any way an attempt to resituate the author as the actual productive center of the history of the book; it is, instead, to offer a history of how the author came to be understood to occupy that cultural role in the first place.
As an initial step toward making clear what this alternative history might look like, it is instructive to return to the "new model" proposed by McDowell and elaborated by Nevitt. Nevitt identifies four features of the early modern book trade that made press regulation more complex than some later commentators have acknowledged. First, to recapitulate, rather than being attributable to a single individual, every work was a "collective enterprise." From this initial insight, the other three follow. Nevitt's second point is that collective agency made it more difficult to locate the possessor of the original "seditious intention." Third, anyone whose name could be directly associated with the work through an imprint—most often, the printer—was held liable for that work. Finally, in the most telling formulation of all, Nevitt concludes that whoever was punished for a printed work was "tarred with the brush of originative agency." Even as he demonstrates the failure of the law—as well as later historians—to do justice to the complexities of the print trade, Nevitt concisely articulates the presuppositions that grounded regulatory measures and subsequent histories, laying bare their circular logic. The person to whom responsibility for a printed work was attributed was an individual who could be linked to the work through the medium of a proper name, who could then be understood to be possessed of both an identifiable intention and an originative agency. We are accustomed to understanding these as the definitive attributes of the modern author. As Nevitt shows, however, before they were thus limited in their scope, these attributes could be applied to anyone in the book trade to whom responsibility for a printed work could be affixed and on whom punishment for that work could be exacted. As L'Estrange's Considerations puts it, "let the Person "in whose Posession " [an offending book] "is" found, "be Reputed, and Punish'd as the" Author "of the said Book, unless he "Produce "the Person, or Persons, from whom he receiv'd it" " (2). If signature, intention, origination, and now "possession" are the distinctive attributes of modern authorship and if these attributes could be applied to anyone in the book trade, who would then be known by the name of "Author," then authorship comes to look more and more like a refinement in the mechanism for the regulation of printed books. As Rosemary Coombe puts it, "the figure of the author, or the role of the author-function, might be seen as that of an elite broker for the management of textuality." In describing authorship in these terms, Coombe is making explicit the debt she shares with virtually all recent works on authorship, including this one: the debt to Michel Foucault's 1969 essay, "What is an Author?," which for the first time attempted to bring together the theoretical notion of authorship as a proprietary relationship with that of authorship as a punitive regime.
Attribution, "Penal Appropriation," and the Consequences of Copyright
No work on the history of authorship has had more influence than Foucault's essay, which was originally given as a seminar at the Société française de Philosophie on 22 February 1969, and delivered the next year, in modified form, as a lecture in the United States. Foucault's essay does not offer a "sociohistorical analysis" of authorship, although he does not dismiss the importance of such a project: "Certainly it would be worth examining how the author became individualized in a culture like ours, what status he has been given, at what moment studies of authenticity and attribution began, in what kind of system of valorization the author was involved, at what point we began to recount the lives of authors rather than of heroes, and how this fundamental category of 'the-man-and-his-work-criticism' began" (141). In some sense, this study attempts to offer one piece of such a socio-historical analysis, with particular attention to the author's status and to his (or her) changing place in a system of "attribution," out of a conviction that through the process of "attribution," the twin poles of modern authorship—ownership and liability—come together.
Yet Foucault's real innovation in the essay lies elsewhere, in his description of discourses as "objects of appropriation" (148). In attempting to describe why some forms of discourse have authors—why, that is, they are characterized by what Foucault calls "an author-function"—while others do not, he writes:
First of all, discourses are objects of appropriation. The form of ownership from which they spring is of a rather particular type, one that has been codified for many years. We should note that, historically, this type of ownership has always been subsequent to what one might call penal appropriation. Texts, books, and discourses, really began to have authors (other than mythical, "sacralized," and "sacralizing" figures) to the extent that authors became subject to punishment, that is, to the extent that discourses could be transgressive. (148)
At the outset, then, authorship for Foucault is a dangerous business, born of the need to find individuals responsible for "transgressive" cultural productions. In what might be seen as a paranoid theory of the etiology of authorship, Foucault emphasizes the historical priority of "penal appropriation" over the more recent forms of "ownership" that govern the relationships between authors and the "texts, books, and discourses" they produce. Anyone conducting the sort of sociohistorical study of authorship passed over by Foucault—exploring, for instance, as this study does, the rhetorics and regulations associated with printed works in early modern England—quickly finds that Foucault's chronology is quite persuasive. The author appears as a legal persona in English documents as the subject of regulation—and even of "penal appropriation"—long before that figure appears as the subject of a more positive form of "ownership" in 1710.
Where Foucault's discussion of the "author function" produces some difficulty, however, is in assessing the relationship between chronology and causality. Foucault is clear that "penal appropriation" precedes the ownership of texts: the production of discourse, he writes, "was a gesture fraught with risks before becoming goods caught up in a circuit of ownership" (148). He is less explicit, however, about the exact relationship between these two dimensions of authorship after the advent of a notion of ownership of texts came into being. Indeed, rather than insisting that these two forms of "appropriation"—penal and proprietary—are coincident, or even related, he seems to suggest that the form of ownership that is codified in measures such as the Act of Anne "displaced" "penal appropriation," getting rid of the risks formerly associated with textual production. Evidence for this reading of Foucault's essay comes in a famous passage in which he singles out literature from other forms of discourse as the place where, in the new, more congenial world of literary property rights, authors can turn to regain some of the "frisson" they experienced under the earlier regime:
Once a system of ownership for texts came into being . . . the possibility of transgression attached to the act of writing took on, more and more, the form of an imperative peculiar to literature. It is as if the author, beginning with the moment at which he was placed in the system of property that characterizes our society, compensated for the status that he thus acquired by rediscovering the old bipolar field of discourse, systematically practicing transgression and thereby restoring danger to a writing which was now guaranteed the benefits of ownership. (149)
According to this view of the history of texts and discourses—a view shared by most writers on copyright—the business of authorship became considerably less risky at the moment when property rights were written into law. The Trouble with Ownership contests this version of the history of authorship, arguing instead that if authorship had been "dangerous" in the era before authors were endowed with rights, it only became more so once they could be encouraged to step forward and take responsibility for their writings. If "penal appropriation" preceded proprietary authorship, that is, the obligations attached to ownership ensured that authors were still open to punishment for the effects of their works after they became capable of owning them. These punishments, moreover, at least in the opinion of eighteenth-century commentators, threatened to outweigh the "benefits" (the word is Defoe's, as well as Foucault's) newly available to authors willing to take advantage of the "system of property."
The more rigidly authorial property rights became recognized and then codified in law, this study argues, the more authors were exposed to penal effects. Owning one's work makes one subject to punishment not only because it makes it easier to trace texts back to their owners, but also because authors who insist on a proprietary relation to their works are punishable for every subsequent, illicit appropriation to which their printed work is exposed. This point is most succinctly and humorously made by a less frequently mentioned theorist of authorship, Jacques Derrida, in his essay "Limited Inc a b c." In this 1977 essay, Derrida offers a response to John R. Searle's "Reiterating the Differences," which was itself a response to Derrida's earlier "Signature, Event, Context." In the course of his response to a response, Derrida offers an extended meditation on the relationship between writing and responsibility and, more specifically and significantly, between copyright and liability. In addition, he offers readers an opportunity, albeit a slightly elliptical and ironic one, to consider the desirability of proprietary authorship—a desirability taken for granted by historians in the liberal tradition for whom the advent of rights in any sphere of life, literary or otherwise, can only constitute a social good.
Derrida begins "Limited Inc a b c" by recounting that late in 1976—the date is important—he received a manuscript copy of Searle's essay in the mail. Two things about the manuscript-two marginal, but nonetheless essential features-immediately jumped out. First, at the top left-hand corner of the manuscript, above the title, was the phrase "Copyright © 1977 by John R. Searle" (30). Second, at the end of the paper, Derrida found a note of acknowledgment, a note that read, "I am indebted to H. Dreyfus and D. Searle for discussion of these matters" (31). Derrida considers each of these statements-the statement of ownership and the statement of indebtedness-at some length, but, most presciently, he discusses in some detail what relationship might be said to exist between the two. He generously passes over—though not without noting it—the fact that since he has received the manuscript "shortly before Christmas, 1976," and since Searle's copyright asserts itself for the year 1977, it is not clear exactly what the status of that copyright might be at the time of the essay's arrival. Moreover, even if the date were not belated with relation to the time of the essay's circulation, Derrida poses a series of other questions that further destabilize Searle's insistent foregrounding of his authorship through the figure of copyright: "Does he make use of his rights to reply? Of his rights as an author? But what makes him think that these rights might be questioned, that someone might try to steal them from him, or that there could be any mistake concerning the attribution of his original production? How would this be possible? Can the thing be expropriated, alienated?" (30). Putting in question at the outset not only the status of authorial property rights but also the motivation behind claiming them in the first place, Derrida playfully signals to his readers—and, presumably, to Searle himself—some of the liabilities that attend every assertion of such rights. By drawing attention to his proprietary relation to his text, by insisting on his rights as an author "to the point of provoking suspicion," Searle is practically inviting readers to question him, to steal from him, and ultimately to expropriate his precious commodity (31).
This, in a manner of speaking, is exactly what Derrida goes on to do, although in doing so he is behaving more like Robin Hood than a common burglar. If the rights of an author purport to be a pure product of property and originality, as Derrida acknowledges that we understand them to be, then what are we to make of the "debts" to H. Dreyfus and D. Searle that John Searle acknowledges—but emphatically does not repay—at the end of his paper? Or rather, at the end of the paper, since it is not entirely clear, at this point in the investigation, whose paper, exactly, this is. Searle's? Which Searle's? Searles' and Dreyfus's? Derrida continues,
the debt includes my old friend H. Dreyfus, with whom I have also worked, discussed, exchanged ideas, so that if it is indeed through him that the Searles have "read" me, "understood" me, and "replied" to me, then I, too, can claim a stake in the "action" or "obligation," the stocks and bonds, of this holding company, the Copyright Trust. . . . "I" therefore feel obliged to claim my share of the copyright of the Reply. (31)
If this essay is John Searle's, it is also, by virtue of the many debts he has accumulated over the years, D. Searle's, H. Dreyfus's, and also Jacques Derrida's as well. Derrida in fact feels so strongly about the importance of being precise about authorial rights—since, after all, Searle has brought them up in the first place—that he feels compelled to replace the name of the author, the authorial signature, with a more legally and ethically accurate formulation. The author of this text, he concludes, and the entity who deserves any rights accruing from the work, is "a more or less anonymous corporation (three + n authors)" (36).
The expression "three + n authors" seems to me to be more rigorous for the reasons I have already stated, involving the difficulty I encounter in naming the definite origin, the true person responsible for the Reply; not only because of the debts acknowledged by John R. Searle before even beginning to reply, but because of the entire, more or less anonymous tradition of a code, a heritage, a reservoir of arguments to which both he and I are indebted. How is this more or less anonymous author to be named? In order to avoid the ponderousness of the scientific expression "three + n authors," I decide here and from this moment on to give the presumed and collective author of the Reply the French name "Société à responsabilité limitée"—literally, "Society with Limited Responsibility" (or Limited Liability)—which is normally abbreviated to Sarl. (36)
In this passage, Derrida for the first time in the essay explicitly addresses the question of responsibilities, which he, virtually alone among theorists of authorship, considers a necessary companion to the question of rights. Just as he has difficulty identifying the "definite origin" of the essay called "Reiterating the Differences," he finds himself unable, or perhaps unwilling, in a radical ethical gesture, to locate "the true person responsible for the Reply" either. He solves both of these problems at once, by incorporating all those who might be entitled to a share in the essay—as well as those who might be liable for it—into the "more or less anonymous" entity called "Sarl." This entity has limited liability for the essay—but limited how? Does each part of the entity have liability in proportion to his or her share in the origin? Since such shares can never truly be apportioned, however—since, that is, our textual and intellectual debts can never "truly" be acknowledged, let alone tallied and paid off—the authors will have to settle for collective or corporate attribution, a share in the profits, in exchange for which they are excused total or exclusive responsibility for the Reply.
Derrida concludes this section of the essay with some words of consolation for those addressees who may feel that they have lost something in this exchange.
I hope that the bearers of proper names will not be wounded by this technical or scientific device [three + n authors]. For it will have the supplementary advantage of enabling me to avoid offending individuals or proper names in the course of an argument that they might now and then consider, wrongly, to be polemical. And should they, perchance, see this transformation as an injurious or ironic alteration, they can at least join me in acknowledging the importance of the desires and fantasms that are at stake in a proper name, a copyright, or a signature. (36)
Once again, Derrida, ever the dealer, offers Searl a kind of tradeoff. However much they may feel that they have lost by being absorbed into a collectivity for the purposes of attribution, however much they may feel that their proprietorship has been ironized, injured, and downright misappropriated, at least they will have the opportunity to sidestep any offense produced in the course of Derrida's remarks. They need not feel responsible for those things he takes issue with in "Reiterating the Differences." Since no one any longer "owns" this text, no one will be expected to answer for it.
In dissolving authorship into a corporate entity, Derrida is pursuing a strategy not unlike that undertaken by those recent historians of the book who have reread the print trade as a collaborative, collective, decentered enterprise, with no single governing consciousness. At the same time, he is (presumably unwittingly) mimicking those early modern authors who attempted to escape liability for their works by claiming that their works had been stolen by unscrupulous members of the trade, circulated by piratical printers and mischievous booksellers. He is, to return for a moment to Foucault, refusing the attributes—both the benefits and the liabilities—that characterize modern authorship and distinguish it from the forms of attribution of texts associated with earlier eras.
In a related gesture at the end of "What is an Author?" Foucault returns to the question of what he calls "the 'ideological' status of the author"—that is, the function the author fulfills in the regulation of all forms of expression. The author, Foucault writes, in a reversal of traditional understandings of authorship, is "a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation" of ideas and expression (159). Rather than being a fountain—as Roger L'Estrange would put it—which is to say, a generative figure who "deposits, with infinite wealth and generosity, an inexhaustible world of significations" into a text, an author is a principle of limitation, "a principle of thrift" (159). Foucault concludes, "the author is therefore the ideological figure by which one marks the manner in which we fear the proliferation of meaning" (159). By understanding the Act of Anne, which definitively linked books to their authors under the law for the first time, as a response to this fear of proliferation of meaning, as well as as a response to anxieties about the chaotic effects of commercial deregulation in the print trade, it is possible to see how ownership and liability came together in 1710. Proprietary authorship, in an unfortunate turn of events, made it possible for the first time to ensure an effective means of "penal appropriation." How authors recognized and responded to this change in their legal, cultural, and ideological status constitutes the main concern of this book.
Surviving Copyright: Strategies of Disownership
Early modern readers and writers, as Adrian Johns notes in the epigraph to this introduction, were well aware of the perils associated with the trade in printed books, even if later commentators have disregarded them. Authors, in particular, encountered a variety of dangers in the early modern period and were answerable for a wide range of crimes. They faced legal charges including sedition, libel, heresy, and treason. On the ethical front, they might be accused of encouraging vice or circulating lies. The perilous waters of the book trade required them to negotiate greedy publishers, outright pirates, thieving booksellers, and inaccurate printers. Authors, as Gay in particular discovered in the aftermath of his publication of The Beggar's Opera, might be held responsible not only for their own actions, but for the actions of any reader who chose to cite a printed work as a motive for his or her criminal activity. Given the myriad dangers attached to authorship in this period, and the severity of the punishments to which crimes of writing were subject, authors had to find strategies to ensure that the costs of authorship did not outweigh its benefits.
Catherine Gallagher's influential book, Nobody's Story, is a study of the way in which female writers in this period survived the trials of publication, and even, from time to time, managed to "thrive" despite them. Gallagher begins by noting that women writers, rather than trying to deny their femininity as a means of negotiating the difficult terrain of publicity, actually "emphasized their femininity" as a means of "gaining financial advantage" (xiii). Women authors, she writes, emphasized one characteristic of female "powerlessness," their "dispossession" (xx), more insistently than any other. The fact that women had only extremely limited access to property, literary or otherwise, allowed women writers to draw attention to their "inability to own the text," as a means of evading some of the most pressing obligations that followed from commodification, appropriation, and responsibility—the same obligations to which male authors in general, and proprietary male authors in particular, were subject (xx).
The strategy of "capitalizing on . . . femaleness" (xxiv) by making use of the female trait of "dispossession" was not limited to women authors in this period. Gay, for instance, persistently figured himself as a vulnerable, penniless, and literally "dispossessed" author throughout his career. His rhetoric of powerlessness became particularly acute when he set about publishing the sequel to The Beggar's Opera, Polly, in 1729. Thanks to the notoriety of its predecessor, Polly promised to be an unusually controversial work, as a result of which it was banned from presentation on the stage by the Lord Chamberlain. Gay nonetheless made the potentially foolhardy decision to allow the work to appear in print. In addition to rhetorically emphasizing his vulnerability in all of the petitions, letters, and prefatory material surrounding the publication of Polly, Gay also made use of another strategy of "capitalizing on femaleness," by engaging the Duchess of Queensberry as patron of his work and protector of its author. Gay relied on the fact that, as a woman, the duchess could protect him, without herself being exposed to any overwhelming repercussions from her involvement with this scandalous publication. By asking the duchess to do the public work of selling subscriptions to Polly, Gay managed to avoid the most immediate danger of "penal appropriation" that he feared would ensue, if he himself were to appear in public as its author. Thus Gay used the duchess as a shield, a patron, and a protector, in the publication of this particularly risky work.
When Alexander Pope published The Dunciad in 1728, he also made use of a female intermediary to aid in the publication of his dangerous text. The danger of The Dunciad lay primarily in the fact that it constituted an ad hominem attack on virtually every minor author—the titular Dunces—of the age. In the first edition, Pope tried to protect himself even minimally—and to circumvent the ever more pressing libel laws—by identifying his adversaries only by coded names or initials with dashes. In the expanded 1729 edition, the Dunciad Variorum, he abandoned all pretence to discretion and identified the Dunces by name. Although Pope went to elaborate lengths to maintain property in these poems, he feared the reprisals of the Dunces that might result if he put his name on the works and advertised them as his own. Instead, Pope placed a false imprint on the title page, which bore the name of a female bookseller, Anne Dodd. Pope relied on the fact that Dodd would have neither the means nor the authority to prosecute him for his appropriation of her name. Thus, like Gay, he employed a woman to serve as a shield, a barrier between himself and the Dunces. The name on the title page worked exactly as Pope intended: Dodd operated as a stand—in for the anonymous author, only barely managing to escape the blows-physical as well as legal—that were meant for Pope himself. Dodd operated in this transaction among authors and readers as what Derrida, in "Limited Inc a b c," calls "a Front," a "borrowed name," "straw man," a "substitute for a clandestine subject" called the author. The straw woman Anne Dodd ensured Pope's survival and his access to the prerogatives of property by reducing the chance that he would be prosecuted or punished for the contents of this particularly risky work.
Through their female intermediaries, Pope and Gay tried to retain the strategy of dispossession while reaping the benefits of their proprietary rights. They tried, that is, to lay claim to the privileges of property as well as those of dispossession, by sheltering the rights of the male author behind a bulwark of feminine mediation. Pope and Gay, in an attempt to disrupt the relation between property and punishment, placed another, intermediary body between themselves and their criminal works. They relocated responsibility for the text onto a woman, out of the conviction that a female figure was best suited to reduce the risks of publication as a result of her benighted relationship to property, literary and otherwise. This relocation was quite literal, for Pope and Gay ensured that these female bodies would stand in for them in the event of reprisals against the body of the author.
In these dramatic acts of substitution, the duchess and Anne Dodd were, no less than Gay and Pope, real embodied historical figures, and one of them, not coincidentally the poor bookseller (albeit also a well-known book pirate), did not choose her role in these events. Pope, in an act of remarkable callousness, was content to expose Dodd to the rage of the Dunces and the accusation of having pirated his book, all in the service of his profit and self-protection. One might conclude from the story of Anne Dodd that the founding gesture of proprietary male authorship is an act of reckless violence against women, a willingness to let female bodies suffer in place of male ones. It is tempting, on the basis of this evidence, to see Dodd as an unwitting victim of Pope's insatiable will to manipulate the book trade, to fold her into this story as a powerless victim through whom the finer details of masculine authorship were worked out. Anne Dodd, in this version, goes down in history as nothing but a straw woman.
But this is not the story, or the history, I want to tell. By investigating Dodd's career as a bookseller and pirate, I suggest that she, too, was exploring ways to capitalize on the changing conditions of the literary marketplace. She even stood to profit from her role as Pope's "front," not hesitating to make use of the notoriety secured her by the Dunciad. As a "mercury"—a pamphlet-seller—and as a female pirate, Dodd demands some narrative space of her own, teaching us as much about the "legitimate" roles women played in the early eighteenth-century book trade as she does about the trade's criminal underside. Like her predecessor in literary crime, Elizabeth Cellier, one of the subjects of my third chapter, she modeled for her contemporaries, both male and female, the strategic use of disownership to advance both commercial and political aims. Her story, too, reminds us that too exclusive a focus on the author at the expense of an understanding of the workings of the trade as a whole can lead us to miss much that is distinctive and important in the literary culture of the early eighteenth century, not least the participation of women in publishing and distributing those texts—periodicals, political pamphlets, criminal and other popular literatures, novels—we consider most characteristic of the changing conditions of reading and writing in the period. Finally, exploring Dodd's career, and ultimately her role in the Dunciad incident, allows us to put the entire risky business of the book trade in the first era of literary property into perspective. Through Dodd and the Dunciad, it is possible to see at once the dangers of the trade and the remarkably creative strategies developed by authors and others to elude those dangers. Through the study of Dodd, then, this book comes full circle, acknowledging the degree to which authors, under the new conditions of proprietorship governing the literary marketplace and above all the profession of authorship, became newly reliant upon members of the book trade to save themselves from what Pope calls their "dangerous fates."
The book is divided into two parts, each of which contains three closely related chapters. Part One, "The Trouble with Ownership," traces the interplay of possession and liability, and the relationship of each to authorship, in the period preceding the establishment of authorial copyright. In response to those critics who have located in this period a gradual transfer of rights from publishers to authors, this section locates a more fundamental transfer of responsibilities, as the author comes increasingly to be endowed with primary—if not sole—responsibility for the effects of what Henry VIII, in a proclamation of 1538, called "naughty printed books." While authors had always been considered at least partially responsible for the content of such books, structural elements in the book trade made it difficult to locate, and hence to prosecute, the author. Much of Part One is given over to exploring why, in the words of Chief Justice Scroggs in 1680, "it is hard to find the Author," and what strategies the authorities—including licensers such as Roger L'Estrange as well as common law judges like Scroggs—developed to make it easier to locate this elusive figure. The first part of the book further establishes that the understanding of authorship as a form of ownership is less a revolutionary invention than a timely refinement on an already prevalent understanding of the relationship between authors and their works—an understanding clearly articulated by the custodians of both the common law and the statutory traditions, and intimately tied to attempts to regulate the press.
Part Two, "The Dangerous Fate of Authors," explores what happens to the relationship between authorship, property, and liability when proprietary authorship is codified in law after 1710. Despite constant frustrations, the Crown, the Parliament, and the courts had recognized for two centuries the link between ownership and liability, along with the necessity of finding the author in order to make that link explicit. Part Two argues that the so-called Copyright Act attempted to solve the problem of the disappearing author in two ways: first, by insisting that in order to reap the benefits of proprietary authorship, authors would have to submit to various forms of documentation when claiming their proprietary rights; and second, by eliminating the widespread piracy that had made prosecuting and punishing authors virtually impossible throughout the first two centuries of print. Paradoxically, the Act did not explicitly address itself to matters of press regulation in any way—a fact that has led to the long critical silence on the relationship between copyright and liability. Yet however difficult it has been for modern commentators to recognize this regulatory feature of the history of copyright, early eighteenth-century authors were under no illusions about the potentially disastrous consequences of stepping forward to lay claim to the full benefits of modern authorship.
The book's first chapter, "Authorship and the Regulation of the Press," offers an overview of the place of the author in ordinances, edicts, and other writings related to press regulation, from the reign of Henry VIII to that of Charles II. The first half of the chapter looks in detail at the writings and career of Roger L'Estrange, Surveyor of the Imprimery under Charles II and "bloodhound" of the Restoration press. L'Estrange was the single most influential voice on matters of press control after the revolution, and he instituted practices of policing and prosecution that took the control of the press out of the hands of the Stationers and put it back under the care of the Crown and the courts for the first time since 1557. In his Considerations and Proposals in Order to the Regulation of the Press (1663), L'Estrange codified a system of rewards and punishments predicated on the belief that the author ought, whenever possible, to be punished for the appearance of dangerous or illegal ideas in print, and that all other members of the book trade should be coerced into assisting the Surveyor in his task of finding and punishing the author. Should the author remain out of reach, L'Estrange continues, making explicit the link between authorship, ownership, and liability, anyone else "in whose possession" a dangerous book was found should be "reputed, and punished as the Author." Although the authorities had, for two centuries, routinely prosecuted printers and publishers for their part in the production of naughty books, the second half of the chapter argues that the desire to "find the author" had a long history in English press regulation, a history somewhat obfuscated by the notoriously difficult task of actually locating what L'Estrange calls the "First Movers," when compared with the ease of finding printers, publishers, and even readers. From its beginnings in the Tudor period, this chapter concludes, English press regulation was marked by a powerful conviction that the author was, in L'Estrange's terms, "the Fountain of our Troubles," even though the powers charged with oversight of the press continued to struggle to find ways of accessing—and ultimately cutting off—that fountain at its source.
The second chapter of Part One, "The Trials of Ownership: Finding the Author in Court," moves from the statutory arena of early modern press regulation to the drama of the Restoration courtroom. After an introductory section that distinguishes the forms of press regulation enacted by proclamations and edicts from those pursued in the common law tradition, the chapter turns to three cases that demonstrate both the perils of ownership and the unceasing struggle after the Restoration to find and punish the author for offenses in print. The first case, John Twyn's 1664 trial for printing and publishing a treasonous pamphlet, ultimately resulted in Twyn's conviction and execution. Although the case seems to argue against the primacy of authorial liability, since it was for his actions as a printer that Twyn was punished, the proceedings of the case nonetheless demonstrate that it was the author the authorities were really interested in prosecuting. L'Estrange, appearing as a witness in the trial, went so far as to promise Twyn that he would be granted mercy, if he would only "discover the Author." When Twyn refused, L'Estrange recommended that Twyn be punished in the author's stead, because, as L'Estrange suggestively put it, "he owned the thing"—that is, he admitted his part in the printing of the pamphlet. By "owning" the pamphlet, L'Estrange indicates, Twyn opened himself to prosecution and punishment for its treasonous contents. The same language of ownership recurs again and again in the other two cases under study here, both of which were tried in 1680: Henry Carr's trial for printing, publishing, and being the presumptive author of The Weekly Pacquet of Advice from Rome; and Elizabeth Cellier's seditious libel trial for writing and publishing Malice Defeated, an account of her earlier trial for treason. In both of these cases, the judges and prosecutors asked the defendants again and again whether they "owned" their books, and the defendants sought to evade punishment by contesting the definition of ownership put forth by the court. As Cellier cheekily argued in the course of her libel trial, "I said only it was mine; not that I was the Author." Whenever possible, Cellier, like Carr, attempted to dispossess herself of her literary property, at the same time as she challenged the equation between ownership and authorship on which the common law strategies of press regulation depended.
The first chapter of Part Two, "Daniel Defoe, the Act of Anne, and the Obligations of Ownership," considers the direct role that Defoe's writings played in the elaboration of a notion of authorial copyright. Rose notes in passing in Authors and Owners that Defoe's Essay on the Regulation of the Press (1704), along with a set of essays in his Review (1709-1710), "influenced the London Stationers" in their attempts to get Parliament to pass an Act that would seriously limit the prevalence of piracy in the book trade (35). From Defoe's writings, Rose convincingly argues, the Stationers may have begun to develop the notion of authorial property rights on which the Act of Anne and its novel anti-piratical strategies depended. Lost in this history, however, is the darker side of Defoe's theory of proprietary authorship: that is, its intimate link to authorial liability. The benefits that accrue from authorial property rights, Defoe insists, constitute a kind of consolation prize awarded in exchange for accountability. In fact, Defoe makes explicit the ways in which literary property responds to—rather than produces—authorial liability: "if an Author has not the right of a Book, after he has made it, and the Benefit be not his own," he argues, "'twould be very hard the Law should pretend to punish him for it." Since authors are already considered legally answerable for their works—as Defoe himself discovered when he stood in the pillory for The Shortest Way with the Dissenters (1702)—the law should at least protect their "right" to benefit from what they have written. Defoe here proposes a relationship between literary property and authorial liability that has since been occluded, if not forgotten. Three hundred years avant la lettre, he makes the link Foucault himself never fully elaborated, between proprietary authorship and penal appropriation.
The final two chapters, "Revenge of the Straw Woman" and "Hostis Humani Generis," explore the immediate consequences for authorial liability of the 1710 statute. A comparative analysis of the publication and piracy of Pope's Dunciad (1728, 1729) and Gay's Polly (1729) illustrates the perils authors exposed themselves to by being proprietors of their own works. Over the course of a year, Pope and Gay each published an unusually dangerous work, capable of inflaming passions and inciting retribution; each attempted to retain his copyright through manipulating recent changes in the law affecting literary property; and each made use of intermediary figures to mitigate the liabilities of owning his work. To avoid the punishments they anticipated, which ranged from prosecution for sedition to the threat of physical beatings, Pope and Gay placed shields between themselves and their audience, who were positioned to take responsibility for the author's transgressions. In both cases, the author's human shield was a woman. Through their female intermediaries, Pope and Gay tried to appropriate the benefits of dispossession, even as they laid claim to the property rights made available by the new law. In the end, however, neither successfully avoided running into trouble in their pursuit of ownership, trouble that only accelerated with the development of copyright.