The Competitiveness of Nations
in a Global Knowledge-Based Economy
July 2002
Martha Woodmansee
The Genius and the Copyright:
Economic and Legal Conditions of
the Emergence of the ‘Author’
Eighteenth-Century Studies
Volume 17, Issue 4
Summer 1984, 425-448
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]
I wish to express my gratitude to
the
1.
Georg Heinrich Zinck, Allgemeines Oeconomisches Lexicon, 3rd ed.
(
425
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
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
2. What Is an Author?” in Josué
Harari, ed., Textual Strategies: Perspectives in Post-Structuralist Criticism
(Ithaca, N.Y.: Cornell Univ. Press, 1979), p. 141.
3. Cf. Jacques Derrida’s
reflections on the connection between copyright and authorship in “Limited Inc a
b c ...”, Glyph, 2 (1978), 162-251.
426
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
4. 0f course not every writer who invoked the muses did so with the passion and conviction, say, of Milton. The important thing, in the present context, is that writers continued to employ the convention of ascribing the creative energy of a poem to an external force right through the Renaissance and into the eighteenth century.
5. This is neatly
documented in Johann Georg Sulzer’s entry for “Dichter” (Poet) in his
four-volume dictionary of esthetic terms, Allgemeine Theorie der schönen
Künste, first issued in 1771-74. After citing with favor Horace’s
willingness to extend the honorific term “poet” only to the writer “ingenium cui
sit, cui mens divinior atque os magna sonaturum.” Sulzer observes that on
occasion “poetry, the customary language of the poet, contains something so
extraordinary and en-[thusiastic that it
was called the language of the gods - for which reason it must have an
extraordinary cause that undoubtedly is to be sought in the genius and character
of the poet” ([Frankfurt and Leipzig, 1798], I, 659).]
HHC – [bracketed]
displayed on page 428 of original
427
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,
6. “An Essay on Criticism,” in Hazard
428
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
7. lbid., pp.
279-80.
8. “Essay, Supplementary to the
Preface,” in Paul M. Zall, ed., Literary Criticism of William Wordsworth
(Lincoln: Univ. of Nebraska Press, 1966), p. 182.
429
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
One of the reasons for this
development, I would suggest, is that Young’s ideas answered the pressing need
of writers in
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
9. Ibid., p.
184.
10. Other important reasons for
German thinkers’ peculiar receptiveness to Young’s ideas are discussed in M. H.
Abrams, The Mirror and the Lamp (Oxford: Oxford Univ. Press, 1953),
pp. 201 ff.
11. Edward Young, Conjectures on
Original Composition in a Letter to the Author of Sir Charles Grandison, in
Edmund D. Jones, ed., English Critical Essays. Sixteenth, Seventeenth and
Eighteenth Centuries (London: Oxford Univ. Press, 1975), p.
289.
430
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
Take my brotherly advice and give up
your plan to live by the pen. See
that you become a secretary or get on the faculty somewhere. It’s the only way to avoid starving
sooner or later. For me it’s too
late to take another path. In so
advising, I’m not suggesting that you should completely give up everything to
which inclination and genius drive you. [13
From the point of view of the
development of a profession of letters, what Lessing recommends is a step
backward to writing as a part-time occupation, an activity pursued by the writer
as an official of the court to the degree allowed by the social and ideological
as well as contractual obligations of his office. [14]
In 1770 Lessing himself would be forced to take such a
step and to accept a position as court
12. 0n the emergence of the
writer/author in
13. Gotthold Ephraim Lessing,
Gesammelte Werke, ed. Paul Rilla (Berlin: Aufbau, 2 1968), IX,
277.
14. Helmuth Kiesel and Paul Munch,
Gesellschaft und Literatur im 18. Jahrhundert (Munich: C. H. Beck, 1977),
p. 79.
431
librarian in Wolfenbüttel. The other two giants of the period,
Friedrich Gottlob Klopstock (1724-1803) and Christoph Martin Wieland
(1733-1813), met with similar fates.
Despite the rapid expansion of the
market for books which began in the 1770s, the prospects of the next generation
of writers did not improve substantially, as the biographies of writers like
Burger, Moritz, and Schiller attest. Having made a reputation for himself with
The Robbers, which he had published at his own expense in 1781, the
twenty-two-year-old Schiller resolved to break his connections with the Duke of
Wurttemberg and try his luck as a professional writer. He would later describe the decision as
precipitate, but at the time Schiller appears to have had little idea of the
manifold vicissitudes of casting one’s lot with the new reading public. “The public is now everything to me,” he
writes,
my school, my sovereign, my trusted
friend. I now belong to it alone.
I shall place myself before this
and no other tribunal. It alone do
I fear and respect. Something grand
comes over me at the prospect of wearing no other fetters than the decision of
the world - of appealing to no other throne than the human spirit.
[15
These high expectations are
expressed in the “Announcement” of Die rheinische Thalie, a periodical
conceived by Schiller in 1784 when he failed to make it as house poet to the
Mannheim National Theater. The
periodical was just the first of a series of such editorial projects that the
poet took on in an effort to earn his living as a writer. Despite his productivity, however,
Schiller just barely succeeded in making ends meet; and when his health broke
down from overwork in 1791, he followed in Lessing’s footsteps and accepted a
pension from his Danish admirer, Prince Friedrich Christian von
Schleswig-Holstein-Sonderburg-Augustenburg. (It is in the form of letters addressed
to this benefactor that On the Aesthetic Education of Man was first
conceived in 1793-94.) Schiller
embraced the patronage of the prince with much the same enthusiasm that he had
displayed in commending himself to the public less than a decade before. In a letter to Baggesen, who had been
instrumental in securing the pension, he welcomes it as the “freedom of
mind
15. Friedrich Schiller, Sämtliche Werke, ed. Gerhard Fricke and Herbert G. Göpfert (Munich: Hanser, 1959), V, 856.
432
[Geist]” for which he had so long yearned, “to be and to achieve
what I can be and achieve by virtue of the powers that have been meted out to
me” - something that his “former circumstances made utterly impossible.” And reflecting back upon his struggles,
he concludes that it is
impossible in the German world of
letters to satisfy the strict demands of art and simultaneously procure the
minimum of support for one’s industry. I have been struggling to reconcile the
two for ten years, but to make it even in some measure possible has cost me my
health. [16
What made it so difficult to live by
the pen in eighteenth-century
16. Schiller to Baggesen, 16 December
1791, in Friedrich Schiller, Briefe, ed. Gerhard Fricke (Munich: Carl
Hanser, 1955), p. 266.
17. 1n a contemporary catalogue of
German writers, Das gelehrte Teutschland oder Lexikon der jetzt lebenden
teutschen Schriftsteller, Johann Georg Meusel placed the number of writers
in 1800 at around 10,650, up dramatically from some 3,000 in 1771, 5200 in 1784
and 7,000 in 1791 (as quoted in Kiesel and Munch, Gesellschaft und Literatur,
p. 90). See also Albert Ward
(Book Production, Fiction, and the German Reading Public, 1740-1800
[Oxford: Clarendon Press, 1974], p. 88), who deduces from Meusel’s figures
that in 1799 there would have been one writer to every 4,000 of the German
population.
18. For the many other obstacles
encountered by would-be writers in eighteenth-century Germany, see, in addition
to the works by Bruford, Haferkorn, and Kiesel and Munch (cited above): Wolfgang
von Ungern-Sternberg, “Schriftsteller und literarischer Markt,” in Rolf
Grimminger, ed., Deutsche Aufklärung bis zur Französischen Revolution,
1680-1789 (Munich: DTV, 1980), pp. 133-85; and Martha Woodmansee, “The
Interests in Disinterestedness: Karl Philipp Moritz and the Emergence of the
Theory of Aesthetic Autonomy in Eighteenth Century Germany,” Modern Language
Quarterly 17 (Spring 1984).
433
The notion that property can be
ideal as well as real, that under certain circumstances a person’s ideas are no
less his property than his hogs and horses, is of course a modern one. In the country in which Martin Luther had
preached that knowledge is God-given and had therefore to be given freely,
however, this notion was especially slow to take hold.
[19]
At the outset of the eighteenth century it was not
generally thought that the author of a poem or any other piece of writing
possessed rights with regard to these products of his intellectual labor. Writing was considered a mere vehicle of
received ideas which were already in the public domain, and, as such a vehicle,
it too, by extension or by analogy, was considered part of the public domain.
In short, the relationship between
the writer and his work reflected the Renaissance view described above. This view found expression in the
institutions of the honorarium, the form in which writers were
remunerated, and the privilege, the only legal arrangement which served
to regulate the book trade until the last decade of the century when, one by
one, the German states began to enact copyright laws.
By the middle of the seventeenth
century it had become customary for publishers to offer honoraria to the writers
whose works they agreed to print. It would be a mistake, however, to
conclude that modest sums of money paid out in this way represented direct
compensation for those works. To
the contrary, as the definition given by Zedler’s Universal-Lexikon in
1735 shows, the honorarium was simply a token of esteem:
Honorarium, means acknowledgment or reward, recognition, favor,
stipend; it is not in proportion to or equivalent to the services performed;
differs from pay or wages, which are specifically determined by contracting
parties and which express a relationship of equivalence between work and payment.
[20
The honorarium a writer might expect
to receive for his work bore no relationship to the exchange value of that work
but was rather
19. Luther’s famous statement, “Ich
habs umsonst empfangen, umsonst hab ichs gegeben und begehre auch nichts
daftir,” occurs in his “Warning to Printers” [Mahnung an die Drucker] in
the Postille (1525). On Luther’s evident lack of any concept
of intellectual property and his position on book piracy, see Ludwig Gieseke,
Die geschichtliche Entwicklung des deutschen Urheberrechts (Gottingen:
Verlag Otto Schwartz, 1957), pp. 38-40.
20.. Johann Heinrich
Zedler, Grosses vollst~indiges Universal-Lexikon
(
434
an acknowledgment of the writer’s
achievements - the sum of which began, with time, to vary in proportion to the
magnitude of those achievements. As
such the honorarium resembled the gifts made to poets by aristocratic patrons.
Indeed, as Goethe observes in the
twelfth book of Dichtung und Wahrheit, the relationship between writers
and publishers in the first half of the eighteenth century still bore a striking
resemblance to that which had existed between the poet and his patron. At that time, Goethe
writes:
the book trade was chiefly concerned with important scientific works, stock works which commanded modest honoraria. The production of poetical works, however, was regarded as something sacred, and it was considered close to simony to accept or bargain for an honorarium. Authors and publishers enjoyed a most amazing reciprocity. They appeared, as it were, as patron and client. The authors, who in addition to their talent were usually considered by the public to be highly moral people and were honored accordingly, possessed intellectual status and felt themselves rewarded by the joy of their work. The book dealers contented themselves with the second rank and enjoyed a considerable advantage: affluence placed the rich book dealer above the poor poet, so everything remained in the most beautiful equilibrium. Reciprocal magnanimity and gratitude were not uncommon: Breitkopf and Gottsched remained intimate friends throughout their lives. Stinginess and meanness, particularly on the part of the literary pirates, were not yet in full swing. [21]
The “beautiful equilibrium”
described by Goethe collapsed, however, as the market for literature expanded
sufficiently to induce writers to try to make an occupation of it. They began to compare “their own very
modest, if not downright meager condition with the wealth of the affluent book
dealers,” Goethe continues,
they considered how great was the fame of a Gellert or a Rabener, and with what domestic straits a universally loved German writer must content himself if he does not lighten his burden through some other employment. Even the average and the lesser luminaries felt an intense desire to better their circumstances, to make themselves independent of the publishers. [22]
Eventually writers would demand
fluctuating honoraria based on sales (i.e., royalties); in the eighteenth
century, however, a flat sum
21. Johann Wolfgang von Goethe,
Werke.
22. Ibid., pp.
517-18.
435
remained customary, upon receipt of
which the writer forfeited his rights to any profits his work might bring. His work became the property of the
publisher, who would realize as much profit from it as he could. It is the injustices to which this
arrangement could lead that Goethe alludes to above, injustices which made it
difficult to keep up the pretense that writers were content not to be paid for
their work.
Christian Furchtegott Gellert
(1715-69) was one of the most widely read writers of the period. Yet he received only 20 Taler 16 Groschen
for his popular Fables; and while he lived out his final years in only
modest comfort, thanks primarily to his patrons and the good will of the
What? The writer is to be blamed for trying to
make the offspring of his imagination as profitable as he can? Just because he works with his noblest
faculties he isn’t supposed to enjoy the satisfaction that the roughest handyman
is able to procure - that of owing his livelihood to his own
industry?
But wisdom, they say, for sale for
cash! Shameful! Freely hast thou received, freely thou
must give! Thus thought the noble
Luther in translating the Bible.
23. Kiesel and Münch, Gesellschaft
und Literatur, pp. 147-48.
24. As quoted by Carsten Schlingmann,
Gellert. Eine literar-historische Revision (Bad Homburg: Gehien, 1967),
p.36.
436
Luther, I answer, is an exception in many things. Furthermore, it is for the most part not true that the writer received for nothing what he does not want to give away for nothing. Often an entire fortune may have been spent preparing to teach and please the world. [25]
Lessing, who views writing as an
occupation, asserts his professional identity in economic terms, raising the
issue of fair compensation for his work. Although his position was echoed by other
writers intent upon living by the pen, the older conception of writing as a
“priceless” part-time activity lived on in the institution of the
honorarium.
If I have given the impression so
far of casting publishers in the role of villains in the economic exploitation
of the writer, let me hasten to correct it. Although they were faring much better
than writers, publishers by this time were experiencing their own tribulations
in the form of unauthorized reprints. The practice of reprinting books without
the permission of their original publishers - a practice which would eventually be
impugned as “piracy” - had existed since the late fifteenth century. In the eighteenth century, however, as
reading became more common and the book trade became a profitable business, it
grew to epidemic proportions, for the development of legal institutions had not
kept pace with the dramatic growth of the trade. The only legal institution available to
publishers in eighteenth-century
25. Gotthold Ephraim Lessing,
Werke, ed. Herbert G. Gopfert (Munich: Carl Hanser, 1973), V, 781. This proposal was never completed and was
not published until after Lessing’s death, in 1800.
26. 0n the history of Anglo-American
copyright, see Lyman Ray Patterson, Copyright in Historical Perspective
(Nashville, Tenn.: Vanderbilt Univ. Press, 1968), esp. pp. 143-50. A briefer account may be found in
Marjorie Plant, The English Book Trade: An Economic History of the Making and
Sale of Books (London: George Allen and Unwin, 1939), pp. 98-121, 420-44.
For a fuller treatment of the
privilege and of copyright law in Germany, see Ludwig Gieseke, Die ge-[schichtliche Entwicklung;
Ch. F. M.
Eisenlohr, Das literarisch-artistische Eigenthum und Verlagsrecht mit
Rücksicht auf die Gesetzgebungen (Schwerin: F. W. Bärensprung, 1855); and Martin Vogel, “Der
literarische Markt und die Entstehung des Verlags- und Urheberrechts bis zum
Jahre 1800,” in Rhetorik, Asthetik, Ideologie. Aspekte einer kritischen Kulturwissenschaft (Stuttgart: J. B. Metzler, 1973), pp.
117-36. The situation in
HHC – [bracketed]
displayed on page 428 of original
437
However, unlike the Copyright Act,
the privilege was not really a law at all but, as the word itself suggests, a
special concession or dispensation conditionally granted to printers or
publishers who enjoyed the favor of the court. Thus, in the entry for “Privilegium” in
Zedler’s Universal-Lexikon of 1741 we read that
among the consequences of the law is
the obligation under which a person is placed to do or to refrain from doing
something according to the law. Now
just as a law can be waived in its entirety or in part, so too can a lawmaker
exempt or grant a person a privilege. This is a special freedom which a
lawmaker permits the subject and exempts him from obligation to the law.
[27
The privilege, in short, was not a
positive law, but rather, as Fichte would later put it sardonically, an
“exception to a natural law” according to which “everybody has the right to
reprint every book.” [28] In this sense the privilege, like the
honorarium, harks back to an earlier conception of writing as a vehicle of
something which by its very nature is public - that is, knowledge - and is
therefore free to be reproduced at will.
The limited protection afforded a
publisher by the privilege was unlike that afforded under the English copyright
in another important respect. The
privilege extended only to the borders of the territory or municipality which
granted it. This system, whereby
each separate state and large town could grant a book protection against
reprinting, had worked well enough as long as the demand for books was limited.
But as demand increased and book
trading became lucrative it proved totally inadequate. For eighteenth-century
27. Zedler, Universal
Lexikon.
28.
Johann
Gottlieb Fichte, “Beweis der Unrechtmtissigkeit des Büchernachdrucks.” Em Räsonnement und eine Parabel,
Sämtliche Werke, ed. J. H. Fichte (Leipzig: Mayer and Muller, n.d.), Pt.
III, Vol. III, p. 237.
438
To make matters worse, mercantilist
economic policies caused some states not only to tolerate piracy but actively to
encourage it as a legitimate source of revenue. [29]
Book piracy affected serious writers
and conscientious publishers most of all, exposing problems that have become
highly familiar to us in today’s conditions of mass-market publishing. The publishers had adopted the practice
of using profits from popular books to finance publication of works which,
because of the serious or specialized nature of their subject matter, were not
likely to succeed in the marketplace. With the growth of piracy however, this
became increasingly more difficult to do. Pirates were naturally attracted to the
most popular books. These they
would quickly reprint at a lower price than the legitimate publisher had
charged. The pirates could easily
afford to do this, according to the bookseller Perthes, because they had no
previous losses to cover and no authors to pay. The consequence for the legitimate
publisher, Perthes goes on to explain, was that he was left with half an edition
of the popular item on his shelves. [30] With their profits cut in this way, publishers became
hesitant to accept anything that they did not feel confident of turning over
quickly. As the bookseller Ganz put
it, “whatever is easiest to write, whatever will enjoy the quickest sales,
whatever involves the smallest loss - these are the things that authors must
write and dealers must publish as long as the plague of piracy persists.”
[31]
Piracy not only threatened the publishers
of the period, then, it also added to the insecurity of serious writers by
increasing the difficulties they already had getting their works into
print.
29. Such was the case in
30. Memoirs of Frederick Perthes:
Translated from the German, 3rd ed., 2 vols. (London and Edinburgh, 1857),
I, 295 ff.
31. As quoted by Ward, Book
Production, p. 98 (trans. Ward’s). On the voracious appetite for a
literature of light entertainment in the late eighteenth century, see Ward,
Book Production, and Jochen Schulte-Sasse, Die Kritik and der
Trivialliteratur seit der Aufklärung (Munich: Wilhelm Fink, 1971). For the problems posed serious writers by
this phenomenon, see Woodmansee, “The Interests in
Disinterestedness”.
439
Legitimate publishers’ resentment of
the book pirates and authors’ resentment of both triggered an intense debate in
which all manner of questions concerning the “Book” were disputed. And here we find an interesting interplay
between legal, economic, and social questions on the one hand and philosophical
and esthetic ones on the other. The
problem of how these two levels of discourse - the legal-economic and the
esthetic - interact is one that historians of criticism have barely explored.
This is unfortunate because it is
precisely in the interplay of the two levels that critical concepts and
principles as fundamental as that of authorship achieved their modern
form.
It would be hard to find a more
patent example of such interplay than the debate over the book that spanned the
two decades between 1773 and 1794. In addition to publishers and legal
experts, many of the best known poets and philosophers of the period contributed.
[32]
The debate
generated so much commentary that it produced an instantaneous
Forschungsbericht or survey: Ernst Martin Gräff’s
Toward a
Clarification of the Property and Property Rights of Writers and Publishers and
of Their Mutual Rights and Obligations. With Four Appendices. Including a
Critical Inventory of All Separate Publications and of Essays in Periodical and
Other Works in German Which Concern Matters of the Book As Such and Especially
Reprinting. [33] The treatise makes good on this promise by reviewing no
less than twenty-five of the separate publications and thirty-five of the essays
written over the twenty-year period leading up to its appearance in
1794.
The debate was precipitated by the
announcement in 1772 of the Deutsche Gelehrtenrepublik
[
32. Among the publishers and legal
experts who contributed were Phillip Erasmus Reich, Joachim Heinrich Campe,
Johann Stephan Putter, and Johann Jakob Cella; the contributing poets and
philosophers included Zacharias Becker, Gottfried August Burger, Kant, Feder,
Ehiers, and Fichte.
33. Versuch einer einleuchtenden
Darstellung des Eigenthums und der Eigenthumsrechte des Schriftstellers und
Verlegers und ihrer gegenseitigen Rechte und Verbindlichkeiten. Mit vier Beylagen. Nebst einem kritischen Verzeichnisse
aller deutschen besonderen Schriften und in periodischen und andern Werken
stehenden Aufsätze üher das Bücherwesen überhaupt und den Büchernachdruck
insbesondere (Leipzig, 1794), 382
pp.
440
to ascertain whether it might be
possible in this way for scholars to become the owners [Eigenthümer] of
their writings. For at present,
they are so only in appearance; book dealers are the real
proprietors, because scholars must turn their writings over to them
if they want to have these writings printed. This occasion will show whether or not
one might hope that the public, and the scholars among themselves, will be
instrumental in helping scholars achieve actual possession of their property
[Eigenthums] (italics Klopstock’s). [34
This experiment in collective
patronage did not have the direct impact on the structure of the book trade that
Klopstock had hoped it might. Subscription was simply too demanding of
the time and resources of writers for many other writers to follow his example.
And readers had already become
accustomed to purchasing their reading matter from the booksellers. This arrangement had the advantage of
enabling them to browse before buying and to await the reaction of other readers
and the reviews. Furthermore,
publishers’ names had become an index of quality, a means of orientation for the
reader in the sea of published matter. [35] In short, cooperation with the growing distribution
apparatus had by this time become virtually unavoidable. It was only on the morale of writers,
therefore, that Klopstock’s experiment had a direct impact. But here his service was considerable,
for Klopstock was the most revered poet of the period. Just by speaking out as he did he helped
to create among writers the authority requisite to advancing their interests
with the publishers. Thus, the
Gelehrtenrepublik must be regarded as an important milestone in the
development of the concept of authorship - as Goethe seems to suggest in the
tenth book of Dichtung und Wahrheit when he remarks that in the person of
Klopstock the time had arrived “for poetic genius to become self-conscious,
create for itself its own conditions, and understand how to lay the foundation
of an independent dignity.” [36
If Klopstocks’s affirmation of the
rights of authors seems self-evident to us today, that is because it eventually
prevailed. It was anything but
self-evident to the author of the entry “Book” in the Allgemeines
Oeconomisches Lexicon of 1753, which stands as the
34. As quoted by Helmut Pape,
“Klopstocks Autorenhonorare und Selbstverlagsgewinne,” Archiv für Geschichte
des Buchwesens, 10 (1969), cols. 103 f.
35. Kiesel and Munch, Gesellschaft
und Literatur, p. 152.
36. Goethe, Werke, IX,
398.
441
motto of this essay. There, where the book is still perceived
as a “convenient instrument for conveying the truth,” none of the many craftsmen
involved in its production is privileged. Listed in the order of their appearance
in the production, “the scholar and the writer, the paper maker, the type
founder, the typesetter and the printer, the proofreader, the publisher, the
book binder…” are all presented as deserving equal credit for the finished
product and as having an equal claim to the profits it brings: “Thus many mouths
are fed by this branch of manufacture.” This definition of the book, which now
reads like the taxonomy of animals in the Chinese encyclopedia “cited” by
Borges, suggests how differently the debate launched by Klopstock might have
turned out (indeed, how reasonable some other resolution of it would have
been). [37] It makes tangible just how much had to change before
consensus could build around his bold assertion of the priority of the writer as
peculiarly responsible - and therefore uniquely deserving of credit - for the
finished product, “Book,” which he helped to make. The nature of writing would have to be
completely rethought. And that, as
I suggested at the outset of the discussion, is exactly what eighteenth-century
theorists did.
The debate in which a good deal of
this reflection was carried on focused on the question of whether or not the
unauthorized reproduction of books [Büchernachdruck] should be prohibited
by law. As incomprehensible as it
may seem to us today, the weight of opinion was for a long time with the book
pirates. For the reading public as
a whole considered itself well served by a practice which not only made
inexpensive reprints available but could also be plausibly credited with holding
down the price of books in general through the competition it created. And given the taste of a majority of the
public for light entertainment, it could hardly be expected to have been swayed
by Perthe’s objection that piracy was so cutting into
37. In this encyclopedia
(Celestial Emporium of Benevolent Knowledge), Borges writes, “animals are
divided into a) those that belong to the Emperor, b) embalmed ones, c) those
that are trained, d) suckling pigs, e) mermaids, f) fabulous ones, g) stray
dogs, h) those that are included in this classification, i) those that tremble
as if they were mad, j) innumerable ones, k) those drawn with a very fine
camel’s hair brush, 1) others, m) those that have just broken a flower vase, n)
those that resemble flies from a distance” (Jorge Luis Borges, “The Analytical
Language of John Wilkins,” Other Inquisitions, 1937-1952 [New York: Simon
and Schuster, 1964], p. 103).
442
the profits of legitimate publishers
that they could no longer afford to take risks on serious
literature.
A variety of defenses was offered
for book piracy, but the most pertinent to the genesis of the modern concept of
authorship are those which sought to rationalize the practice philosophically.
Here, as illustration, are two such
defenses. The first is by a zealous
mercantilist who seeks to advance his interests by emphasizing a book’s physical
foundation:
The book is not an ideal object,… it is a fabrication made of paper upon which thought symbols are printed. It does not contain thoughts; these must arise in the mind of the comprehending reader. It is a commodity produced for hard cash. Every government has the duty to restrict, where possible, the outflow of its wealth, hence to encourage domestic reproduction of foreign art objects and not to hinder the industry of its own citizens to the enrichment of foreign manufacturers. [38]
This writer’s conclusion would be
hard to deny were we to accept his premises. If a book could be reduced to its
physical foundation, as he suggests, then of course it would be impossible for
its author to lay claim to peculiar ownership of it, for it is precisely the
book qua physical object that he turns over to the publisher when he
delivers his manuscript and that, in another format, is eventually purchased by
his readers.
To ground the author’s claim to
ownership of his work, then, it would first be necessary to show that this work
transcends its physical foundation. It would be necessary to show that it is
an emanation of his intellect - an intentional, as opposed to a merely physical
object. Once this has been
acknowledged, however, it will still remain to be shown how such an object can
constitute property - as the following statement by Christian Sigmund Krause
demonstrates:
“But the ideas, the content! that
which actually constitutes a book! which only the author can sell or
communicate!”- Once expressed, it is impossible for it to remain the author’s
property... It is precisely for the purpose of using the ideas that most people
buy books - pepper dealers, fishwives, and the like, and literary pirates
excepted… Over and over again it comes back to the same question: I can
read the contents of a book, learn, abridge, expand, teach, and translate it,
write about it, laugh over it, find fault with it, deride it, use it poorly or
well - in short, do with it whatever
38. As quoted by Bosse,
Autorschaft, p. 13.
443
I will. But the one thing I should be prohibited
from doing is copying or reprinting it?... A published book is a secret
divulged. With what justification
would a preacher forbid the printing of his homilies, since he cannot prevent
any of his listeners from transcribing his sermons? Would it not be just as ludicrous for a
professor to demand that his students refrain from using some new proposition he
had taught them as for him to demand the same of book dealers with regard to a
new book? No, no, it is too obvious
that the concept of intellectual property is useless. My property must be exclusively mine; I
must be able to dispose of it and retrieve it unconditionally. Let someone explain to me how that is
possible in the present case. Just
let someone try taking back the ideas he has originated once they have been
communicated so that they are, as before, nowhere to be found. All the money in the world could not make
that possible. [39
Krause acknowledges that a book is a
vehicle of ideas; however, this does not advance the interests of the author an
iota; for, as Krause points out, it is precisely for the sake of appropriating
these ideas that readers purchase a book in the first
place.
Krause’s challenge to explain to him
how ideas, once communicated, could remain the property of their originator is
taken up by Fichte in the essay “Proof of the Illegality of Reprinting: A
Rationale and a Parable” (1793). Fichte meets the challenge by showing
that a book, in addition to being an emanation of the writer’s intellect, is
also a verbal embodiment or imprint of that intellect. He proceeds by distinguishing between the
physical and ideal aspects of a book - that is, between the printed paper and
content. Repeating the operation,
he then divides the ideal aspects of the book into
the material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented. (italics Fichte’s) [40]
Then, on the presupposition that we
are “the rightful owners of a thing, the appropriation of which by another is
physically impossible,” [41] Fichte goes on to distinguish three
distinct shares of property in the book: When the book is sold ownership of the
physical
39.
Krause, “Uber den Büchernachdruck,”
40. Fichte, “Proof of the Illegality
of Reprinting,” p.
225.
41.
Ibid., p. 225.
444
object passes to the buyer to do
with as he pleases. The material
aspect, the content of the book, the thoughts it presents also pass to the
buyer. To the extent that he is
able, through intellectual effort, to appropriate them, these ideas cease to be
the exclusive property of the author, becoming instead the common property of
both author and reader. The form
in which these ideas are presented, however, remains the property of the
author eternally, for
each individual has his own thought
processes, his own way of forming concepts and connecting them… All that
we think we must think according to the analogy of our other habits of thought;
and solely through reworking new thoughts after the analogy of our habitual
thought processes do we make them our own. Without this they remain something
foreign in our minds, which connects with nothing and affects nothing…
Now, since pure ideas without sensible images cannot be thought, much less
are they capable of representation to others. Hence, each writer must give his thoughts
a certain form, and he can give them no other form than his own because he has
no other. But neither can he be
willing to hand over this form in making his thoughts public, for no one can
appropriate his thoughts without thereby altering their form. This latter thus remains forever his
exclusive property. (italics mine) [42
In his central concept of the “form”
taken by a thought - that which it is impossible for another person to
appropriate - Fichte solves the philosophical puzzles to which the defenders of
piracy had recurred, and establishes the grounds upon which the writer could lay
claim to ownership of his work - could lay claim, that is, to authorship.
The copyright laws
[Urheberrecht] enacted in the succeeding decades turn upon Fichte’s key
concept, recognizing the legitimacy of this claim by vesting exclusive rights to
a work in the author insofar as he is an Urheber (originator, creator) -
that is, insofar as his work is new or original [eigentümlich], an
intellectual creation which owes its individuality solely and exclusively to him.
[43]
The
42. Ibid., pp.
227-28.
43.
Alois Troller, “Originalitat und Neuheit der Werke der Literatur und Kunst und
der Geschmacksmuster,” in Fritz Hodeige, ed., Das Recht am Geistesgut.
Studien zum Urheber-, Verlags- und Presserecht (Freiburg i. B.: Rombach,
1964), pp. 269-70. The first important legislation occurred in
445
publisher, formerly proprietor of
the work, henceforth functioned as his agent.
It remains to retrace the path by which Fichte arrived at this
concept of the “form” taken by a thought and the radically new conception of
writing it implies. In advocating
originality, Edward Young had made what proved to be enormously fecund
suggestions about the process by which this quality is brought about. An original work, he had
conjectured,
may be said to be of a vegetable
nature; it rises spontaneously from the vital root of genius; it grows, it is
not made. Imitations are often a
sort of manufacture wrought up by those mechanics, art and labor, out of
pre-existent materials not their own. [44
Young derogates the craftsman’s
manipulation of inherited techniques and materials as capable of producing
nothing but imitations, “duplicates of what we had, possibly much better,
before.” [45] Original works are the product of a more organic
process: they are vital, grow spontaneously from a root, and by
implication, unfold their original form from within.
[46]
German theorists of the genie period spelled out
the implications of these ideas. [47] That is, they expanded Young’s metaphor for the process
of genial creativity in such a way as to effect the new conception of
composition that enabled Fichte, in the final stage of the piracy debate, to
“prove” the author’s peculiar ownership of his work.
The direction in which their work
took them is illustrated by Herder’s ruminations on the processes of nature in
Vom Erkennen und Empfinden der menschlichen Seele (1778). What most inspires Herder is the
“marvelous diligence” with which living organisms take in and process alien
matter, transforming it in such a way as to make it part of
themselves:
44. Edward Young, Conjectures on
Original Composition, p. 274.
45. Ibid., p.
273.
46. See Abrams, The Mirror and the Lamp, pp. 198
ff.
47. The best study of the cult of
genius is Edgar Zilsel, Die
Geniereligion. Ein Versuch über das
moderne Persönlichkeitsideal mit einer historischen Begründung (Vienna and
Leipzig: Wilhelm Braumüller, 1918). See also his Die Entstehung des
Geniebegriffs. Ein Beitrag zur
Ideengeschichte der Antike und des Frühkapitalismus (Tubingen: Mohr, 1926); and
Oskar Walzel, “Das Prometheussymbol von Shaftesbury zu Goethe,” Neue Jahrbücher für das klassische
Altertum, XIII (1910), 40-71, 133-65.
446
The herb draws in water and earth
and refines them into its own elements; the animal makes the lower herbs into
the nobler animal sap; man transforms herbs and animals into organic elements of
his life, converts them to the operation of higher, finer stimuli.
[48
The ease with which these ideas
about the nature of nature could be adapted to rethinking the nature of
composition is suggested by the young Goethe’s description of writing as “the
reproduction of the world around me by means of the internal world which takes
hold of, combines, creates anew, kneads everything and puts it down again in its
own form, manner.” [49] Goethe departs sharply from the older Renaissance and
neoclassical conception of the writer as essentially a vehicle of ideas to
describe him not only as transforming those ideas, but as transforming them in
such a way as to make them an expression of his own – unique - mind. Herder sums up this new line of thought
when he observes that “one ought to be able to regard each book as the imprint
[Abdruck] of a living human soul”:
Any poem, even a long poem - a life’s (and soul’s) work - is a tremendous betrayer of its creator, often where the latter was least conscious of betraying himself. Not only does one see in it the man’s poetic talents, as the crowd would put it; one also sees which senses and inclinations governed him, how he received images, how he ordered and disposed them and the chaos of his impressions, the favorite places in his heart just as his life’s destinies, his manly or childish understanding, the stays of his thought and his memory. [50]
This radically new conception of the
book as an imprint or record of the intellection of a unique individual - hence
a “tremendous betrayer” of that individual - entails new reading strategies.
In neoclassical doctrine the
pleasure of reading had derived from the reader’s recognition of himself in a
poet’s representations (a pleasure guaranteed by the essential similarity of all
men). Thus Pope’s charge to the
poet to present “something, whose truth convinced at sight we find,/ That gives
us back the image of our mind.” With Herder the pleasure of reading lies
instead in the exploration of an Other,
48. Herders sämtliche Werke,
ed.
Bernhard Suphan (Berlin: Weidmann, 1892), VIII, 175-76.
49.
Goethe to Jacobi,
50.
Herder, Vom Erkennen und Empfinden der menschlichen Seele, p.
208.
447
in penetrating to the deepest
reaches of the foreign, because absolutely unique consciousness of which the
work is a verbalized embodiment. Herder describes this new and, to his way
of thinking, “active” [lebendig] mode of reading as “divination into the
soul of the creator
[Urheber].” [51] Not every
writer merits reading in this way, he says, but with writers who are “worth the
trouble” - our “favorite writers” - it is “the only kind of reading and the most
profound means of education.”
Herder’s redefinition of the goals
of reading brings us back to the questions with which this discussion began.
For his recommendation that we
treat a book as a revelation of the personality of its author sets the stage for
the entire spectrum of the “man-and-his-work criticism” to which Foucault
alluded, as well as for the theoretical tradition that undergirds it:
hermeneutics from Schleiermacher and Dilthey to a contemporary theoretician like
E. D. Hirsch. Despite their many
differences, all of these critics share the belief that criticism has
essentially to do with the recovery of a writer’s meaning, and they all take for
granted the concept of the author that evolved in the eighteenth century. What we tend to overlook is the degree to
which that concept was shaped by the specific circumstances of writers during
that period.
Northwestern
University
448
51.
Ibid, pp. 208-209.
The Competitiveness of Nations
in a Global Knowledge-Based Economy
July 2002