Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain

Abstract

"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. 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 assigned directly by the crown or managed by the Stationers' Company. 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. 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 the post-revolutionary civic society in which copyright law emerged."