The author’s right to intellectual property is both historically conditioned and highly qualified by the interests of others. In common with most laws, those governing intellectual property necessarily entail a balancing of competing rights, specifically the claim of publishers to a fair return on their investment on the one hand and, on the other, the benefit to readers from open access to and enjoyment of printed materials. Furthermore, the right to intellectual property is not absolute. Its development is enmeshed with the history of print culture and the growing dissemination of books in Britain and abroad, and it was far from uncontested. Although London publishers were the first to lay claim to intellectual property rights, their exclusive control over printed matter was challenged by “pirates,” independent reprint publishers who acted to break a monopoly that distorted the literary marketplace. Assertions of authors’ rights came comparatively late in this process. An author’s claim to ownership over the fruits of his or her labours began to be conceptualized only after the middle of the eighteenth century, and only in the first decades of the nineteenth century did authors attempt to implement it. Our modern conception of authorship was formed within the relationships among publishers, the changing literary marketplace, and Regency [End Page 29] writers like Byron and Jane Austen. It was constructed at the intersection of socio-economic practices and artistic creativity.
The Romantic construction of the author as autonomous genius has been called into question by study of the social and economic contexts in which the real “work” of art was actually done. Jerome McGann long ago warned against accepting Romanticism’s self-representations at face value and elsewhere draws attention to the distortions inherent in “a Romantic conception of literary production” (Critique 8). Pointing the way to “a socialized concept of authorship,” he argues that a literary work of art is “fundamentally social rather than personal,” a process that inevitably entails interchanges with other writers, with editors and publishers, and ultimately with readers and the institutions that support their activities (Critique 8, 44). McGann’s views have a strong kinship with D. F. McKenzie’s reinscription of bibliography as a “sociology of texts,” in which a book is not merely an object but a social product whose history must include both its making and use.1 Authorship in the Romantic era was formed within these exchanges, and its genius in large measure was subject to material conditions. Any adequate understanding of authorship, then, must take into account the commercial environment in which it operates, because the circulation of texts occurs within a literary economy governed by structures of law, financial interests, and social practice.
Copyright vs. Authors
For much of the Restoration and the eighteenth century, the firm of Jacob Tonson was one of the foremost publishers of literary texts in England. [End Page 30] Asked which author had earned him the greatest profits, Tonson replied without hesitation, “Milton.”2 But at the time authors seldom enjoyed the economic benefits of their work to the same extent that the booksellers did. Copyright began as a legal device to protect the interests of those involved in the book trade and to provide printers and publishers with a return on their capital investment. Authors sold their work to a publisher, and it was the publisher who exercised copyright, which they regarded as their own property as recognized at common law. On that basis, publishers claimed the right in perpetuity to copy the works they had acquired, to make as many editions as they chose, and to sell off their copyright in a work to the highest bidder. Samuel Johnson, who took a close interest in the conditions under which books were produced, tells in detail how Milton contracted to sell Paradise Lost to Samuel Simmons for £20. He explains that Simmons sold the copyright for £25 to Brabazon Aylmer in 1680 and how Aylmer sold on his property to Jacob Tonson “at a price considerably enlarged.” Tonson’s 1688 folio edition established Milton’s literary reputation, and his successors continued to publish Paradise Lost for years to come...