Intellectual Property

William T. Gallagher, William T. Gallagher

• Editore: Routledge
• Anno: 2017
• ISBN:
  9781351927161
• Edizione: 1
• Argomento: Derecho
• Categoria: Teoría y práctica del derecho

This book brings together articles by leading international scholars from diverse disciplinary perspectives who focus on the legal, social and cultural dimensions of intellectual properties - including patents, copyrights, trademarks, trade secrets and rights of publicity. These articles employ a creatively eclectic approach to the study of intellectual property law and policy viewed through the lenses of traditional doctrinal analysis, historical perspectives, critical cultural study, and empirical examinations of intellectual property in action. The volume also directs critical attention to the significance of intellectual property in contemporary processes of globalization and political economy.

Part I

Social and Cultural Histories of Intellectual Property

[1]

The Genius and the Copyright:

Economic and Legal Conditions of the Emergence of the ‘Author’

MARTHA WOODMANSEE

Book, either numerous sheets of white paper that have been stitched together in such a way that they can be filled with writing; or, a highly useful and convenient instrument constructed of printed sheets variously bound in cardboard, paper, vellum, leather, etc. for presenting the truth to another in such a way that it can be conveniently read and recognized. Many people work on this ware before it is complete and becomes an actual book in this sense. The scholar and the writer, the papermaker, the type founder, the typesetter and the printer, the proofreader, the publisher, the book binder, sometimes even the gilder and the brass-worker, etc. Thus many mouths are fed by this branch of manufacture.

Allgemeines Oeconomisches Lexicon (1753)¹

IN CONTEMPORARY USAGE an author is an individual who is solely responsible—and therefore exclusively deserving of credit—for the production of a unique work. Although the validity of this concept has been put in question by structuralists and poststructuralists who regard it as no more than a socially convenient fiction for the linguistic codes and conventions that make a text possible, its genesis has received relatively little attention despite Michel Foucault’s observation that “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.”² Foucault’s questions go to the heart of the problem that will concern me in this essay.

In my view the “author” in its modern sense is a relatively recent invention. Specifically, it is the product of the rise in the eighteenth century of a new group of individuals: writers who sought to earn their livelihood from the sale of their writings to the new and rapidly expanding reading public. In Germany this new group of individuals found itself without any of the safeguards for its labors that today are codified in copyright laws. In response to this problem, and in an effort to establish the economic viability of living by the pen, these writers set about redefining the nature of writing. Their reflections on this subject are what, by and large, gave the concept of authorship its modern form.³

In the Renaissance and in the heritage of the Renaissance in the first half of the eighteenth century the “author” was an unstable marriage of two distinct concepts. He was first and foremost a craftsman; that is, he was master of a body of rules, preserved and handed down to him in rhetoric and poetics, for manipulating traditional materials in order to achieve the effects prescribed by the cultivated audience of the court to which he owed both his livelihood and social status. However, there were those rare moments in literature to which this concept did not seem to do justice. When a writer managed to rise above the requirements of the occasion to achieve something higher, much more than craftsmanship seemed to be involved. To explain such moments a new concept was introduced: the writer was said to be inspired—by some muse, or even by God. These two conceptions of the writer—as craftsman and as inspired—would seem to be incompatible with each other; yet they coexisted, often between the covers of a single treatise, until well into the eighteenth century.

It is noteworthy that in neither of these conceptions is the writer regarded as distinctly and personally responsible for his creation. Whether as a craftsman or as inspired, the writer of the Renaissance and neoclassical period is always a vehicle or instrument: regarded as a craftsman, he is a skilled manipulator of predefined strategies for achieving goals dictated by his audience; understood as inspired, he is equally the subject of independent forces, for the inspired moments of his work—that which is novel and most excellent in it—are not any more the writer’s sole doing than are its more routine aspects, but are instead attributable to a higher, external agency—if not to a muse, then to divine dictation.⁴

Eighteenth-century theorists departed from this compound model of writing in two significant ways. They minimized the element of craftsmanship (in some instances they simply discarded it) in favor of the element of inspiration, and they internalized the source of that inspiration. That is, inspiration came to be regarded as emanating not from outside or above, but from within the writer himself. “Inspiration” came to be explicated in terms of original genius, with the consequence that the inspired work was made peculiarly and distinctively the product—and the property—of the writer.⁵

This sketch of the development of the concept of the writer since the Renaissance (which, to be sure, I have oversimplified) may be illustrated by two statements, one made by Alexander Pope (1688–1744) at the very beginning of this development and another by William Wordsworth (1770–1850) speaking from the other side of it. As the first major English poet to achieve wealth and status without the aid of patronage but entirely from the sale of his writings, Pope still professes the Renaissance view of the writer as primarily a craftsman whose task is to utilize the tools of his craft for their culturally determined ends. In a familiar passage from his Essay on Criticism (1711) Pope states that the function of the poet is not to invent novelties, but to express afresh truths hallowed by tradition:

True wit is nature to advantage dressed;

What oft’ was thought, but ne’er so well expressed;

Something, whose truth convinced at sight we find,

That gives us back the image of our mind.⁶(297–300)

However, Pope also incorporates in the Essay the other seemingly anomalous view of the writer as subject to a “happiness as well as care,” as capable, that is, of achieving something that has never been achieved before. This the poet can accomplish only by violating the rules of his craft:

Some beauties yet no precept can declare,

For there’s a happiness as well as care.

Music resembles poetry; in each

Are nameless graces which no methods teach,

And which a master hand alone can reach.

If, where the rules not far enough extend,

(Since rules were made but to promote their end)

Some lucky license answer to the full

Th’ intent proposed, that license is a rule.

Thus Pegasus, a nearer way to take,

May boldly deviate from the common track.

Great wits sometimes may gloriously offend,

And rise to faults true critics dare not mend;

From vulgar bounds with brave disorder part,

And snatch a grace beyond the reach of art.⁷ (141–55)

Such moments of inspiration, in which the poet snatches a grace beyond the reach of the rules and poetic strategies that he commands as the master of a craft, are still the exception for Pope. However, from the margins of theory, where they reside in the Essay at the beginning of the century, these moments of inspiration move, in the course of time, to the center of reflection on the nature of writing. And as they are increasingly credited to the writer’s own genius, they transform the writer into a unique individual uniquely responsible for a unique product. That is, from a (mere) vehicle of preordained truths—truths as ordained either by universal human agreement or by some higher agency—the writer becomes an author (Lat. auctor, originator, founder, creator).

It is as such a writer that Wordsworth perceives himself. Discussing the “unremitting hostility” with which the Lyrical Ballads were received by the critics, Wordsworth observes that “if there be one conclusion” that is “forcibly pressed upon us” by their disappointing reception, it is “that every Author, as far as he is great and at the same time original, has had the task of creating the taste by which he is to be enjoyed”(italics Wordsworth’s).⁸ Inasmuch as his immediate audience is inevitably attuned to the products of the past, the great writer who produces something original is doomed to be misunderstood. Thus it is, according to Wordsworth, that “if every great Poet …, in the highest exercise of his genius, before he can be thoroughly enjoyed, has to call forth and to communicate power,” that is, empower his readers to understand his new work, “this service, in a still greater degree, falls upon an original Writer, at his first appearance in the world.”

Of genius the only proof is, the act of doing well what is worthy to be done, and what was never done before: Of genius in the fine arts, the only infallible sign is the widening the sphere of human sensibility, for the delight, honor, and benefit of human nature. Genius is the introduction of a new element into the intellectual universe: or, if that be not allowed, it is the application of powers to objects on which they had not before been exercised, or the employment of them in such a manner as to produce effects hitherto unknown.⁹

For Wordsworth, writing in 1815, the genius is someone who does something utterly new, unprecedented, or in the radical formulation that he prefers, produces something that never existed before.

The conception of writing to which Wordsworth gives expression had been adumbrated a half century earlier in an essay by Edward Young, Conjectures on Original Composition. Young preached originality in place of the reigning emphasis on the mastery of rules extrapolated from classical literature, and he located the source of this essential quality in the poet’s own genius. His essay attracted relatively little attention in England; but in Germany, where it appeared in two separate translations within two years of its publication in 1759, it had a profound impact. German theorists from Herder and Goethe to Kant and Fichte elaborated the ideas sketched out by Young and shifted them from the periphery to the very center of the theory of the arts.

One of the reasons for this development, I would suggest, is that Young’s ideas answered the pressing need of writers in Germany to establish ownership of the products of their labor so as to justify legal recognition of that ownership in the form of a copyright law.¹⁰ The relevance of his ideas to this enterprise had already been suggested by Young himself when he enjoined the writer to

Let not great examples, or authorities, browbeat thy reason into too great a diffidence of thyself: thyself so reverence, as to prefer the native growth of thy own mind to the richest import from abroad; such borrowed riches make us poor. The man who thus reverences himself, will soon find the world’s reverence to follow his own. His works will stand distinguished; his the sole property of them; which property alone can confer the noble title of an author; that is, of one who (to speak accurately) thinks and composes; while other invaders of the press, how voluminous and learned soever, (with due respect be it spoken) only read and write.¹¹

Here, amid the organic analogues for genial creativity that have made this essay a monument in the history of criticism, Young raises issues of property: he makes a writer’s ownership of his work the necessary, and even sufficient condition for earning the honorific title of “author,” and he makes such ownership contingent upon a work’s originality.

The professional writer emerged considerably later in Germany than in England and France. Pope had long since written his way to fame and fortune in England by the time that w...