Escaping from the Pirates: History, Literary Criticism, and American Copyright

When I first read Michel Foucault's "What is an Author?" I thought it was all very mystical. Like so many others, I was probably haunted by the echo of the final rhetorical question taken from Samuel Beckett, "What matter who's speaking?" Today, that last question seems rather quaint—Foucault's idea of a stylish ending—and my attention focuses instead on the nonrhetorical questions he suggests just before the special effects, questions he suggests researchers take up in the future: "What are the modes of existence of [a] discourse? Where does it come from; how is it circulated; who controls it? What placements are determined for possible subjects? Who can fulfill these diverse functions of the subject?" (138). The first two of these are actually very practical questions, demanding not so much theoretical speculation as painstaking archival research and economic modeling. The second two are what we might call more "Foucauldian," but note that they are secondary. Perhaps Foucault can be or has been a guiding presence in the history of the book as well as in literary theory. A convergence is certainly developing between these two fields, and others: on the question of authorship, not only do historians of the book and literary theorists continue their labors, but creative writers, social and intellectual historians, legal scholars, and ethnographers are making important contributions, often mobilizing methods and materials from more than one discipline. In literary studies, the wave of empirical scholarship on modern authorship began to gain prominence in the early 1990s, when Mark Rose's Authors and Owners: The Invention of Copyright was surrounded by a cluster of important essays and books by Martha Woodmansee, Carla Hesse, and others. Rose traced the history of copyright in Britain through the eighteenth century, and showed that even if it is "natural" to us, the idea that an author owns his work emerged only precariously in specific economic, institutional, and political circumstances. Rose echoes Foucault's interest in the history of the subject in his observation that "the notion of originality as a central value in cultural production developed . . . in precisely the same period as the notion of the author's property right" (6). He credits the idea of the author as proprietor to publishers who, following the breakup of the Stationers' Company, needed to establish a foundation to their title to materials they published. If the author had created a work de novo, or by the Lockean addition of labor to common property, then of course he could sell it just like any other piece of property. The story of modern authorship Rose tells is one of converging interests and contingencies.

But if the author is surrounded by history in this account, he is not entirely historicized.¹ David Saunders has charged that poststructuralist-inflected efforts to tell the story of the modern author are in fact hyperhumanist rather than posthumanist: "The effect of depicting the history of authorship in terms of the formation of the subject is to transform the local conditions and imperatives of a particular publishing environment into a mere prelude or necessary precondition of the modern author" (93-94). This charge could even hold for Rose, who turns to the legal history of copyright to illuminate what he considers the unstoppable modern development of a popular and legally backed assumption that authors own what they create. But when Rose shows that in Donaldson v. Becket (1774) the British courts disavowed a common-law basis for copyright, basing the right on statute and thereby refusing demands that it be perpetual, the contradiction between the legal outcome of the debates and the popular investment in the proprietary author makes a puzzle out of his claim that there is a necessary and direct connection between the two.

More telling still than Saunders's critique was Meredith McGill's publication in 1997 of an article about the American Wheaton v. Peters case (1834...