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“The Author”, “The Work” and “Literary Property” with Specific Refe The University of Notre Dame Australia ResearchOnline@ND Theses 2018 The emergence & evolution of the concepts of “the author”, “the work” and “literary property” with specific efr erence to enlightenment england 1450-1769: The role and influence of John Locke in the case of Millar v Taylor (1769) Mark Doepel The University of Notre Dame Australia Follow this and additional works at: https://researchonline.nd.edu.au/theses Part of the Philosophy Commons COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING The material in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be the subject of copyright protection under the Act. Do not remove this notice. Publication Details Doepel, M. (2018). The emergence & evolution of the concepts of “the author”, “the work” and “literary property” with specific reference to enlightenment england 1450-1769: The role and influence of John Locke in the case of Millar v Taylor (1769) (Master of Philosophy (School of Philosophy and Theology)). University of Notre Dame Australia. https://researchonline.nd.edu.au/theses/221 This dissertation/thesis is brought to you by ResearchOnline@ND. It has been accepted for inclusion in Theses by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. THE EMERGENCE & EVOLUTION OF THE CONCEPTS OF “THE AUTHOR”, “THE WORK” AND “LITERARY PROPERTY” WITH SPECIFIC REFERENCE TO ENLIGHTENMENT ENGLAND 1450-1769 THE ROLE AND INFLUENCE OF JOHN LOCKE IN THE CASE OF MILLAR V TAYLOR (1769) Mark Thomas Doepel A thesis submitted in partial fulfilment of the requirements of the degree of Master of Philosophy The School of Philosophy & Theology The University of Notre Dame Australia 2018 Declaration of Authorship This thesis is the candidate’s own work and contains no material which has been accepted for the award of any degree or diploma in any other institution. To the best of the candidate’s knowledge, the thesis contains no material previously published or written by another person, except where due reference is made in the text of the thesis. Candidate’s name Candidate’s signature Mark Thomas Doepel Date: 17 June 2019 1 For LES, with love 2 TABLE OF CONTENTS ABSTRACT ......................................................................................................... 4 CHAPTER ONE .................................................................................................. 5 CHAPTER TWO ................................................................................................ 21 CHAPTER THREE ............................................................................................ 35 CHAPTER FOUR .............................................................................................. 52 CHAPTER FIVE ................................................................................................ 72 CHAPTER SIX ................................................................................................... 92 CHAPTER SEVEN .......................................................................................... 118 CHAPTER EIGHT ........................................................................................... 143 CHAPTER NINE ............................................................................................. 173 CHAPTER TEN ............................................................................................... 228 BIBLIOGRAPHY ............................................................................................. 247 3 Abstract This thesis argues that the political philosophy of John Locke, as mostly contained in his Two Treatises of Government, but also in a number of other of his works, and especially in relation to his theory on how property rights might be acquired, had a direct influence on the emergence of the modern notions of the author, the literary work and copyright as witnessed through a series of legal cases brought before the courts of England and Scotland over the period of 1700 to 1780. It is specifically shown that Locke’s philosophy had a direct influence on the acknowledgment of the English courts of not only property rights existing within authors in relation to their literary rights but also a subtle recognition that literary creativity also afforded authors moral rights over their works. The thesis does this by examining the emergence of the paper and printing industry over time and then following an historical arc which shows the emergence of the three notions under consideration. Having reviewed philosophical and political theories of property and property rights over the ages, the thesis then dissects a number of key legal cases to establish the direct influence that John Locke’s writings had in relation to an acknowledgment of intellectual property right acquired through mental labour. The thesis contributes to work in this are as it identifies Locke’s influence is establishing not only legal property rights over creative works but also certain moral rights. 4 Chapter One Introduction: overview of thesis This thesis examines how John Locke’s work on political theory, The Two Treatises of Government, played a central role in the history of ideas in respect of the emergence, development and acceptance of three interlocking concepts. These concepts concern literary property as private property and an author’s interest in literary property as both a legal and a moral right, being a legal right as recognised by the legal institutions of society and as a moral right, being an author’s right to attribution, reputation and control of the work, beyond mere economic rights. As will be considered, moral rights may exist beyond legal rights, sourced from natural rights and reason. The three concepts concerned are “the author”, “the literary work” and the right to commercially exploit that work through “copyright”. Locke’s writings concerning how private property rights are acquired and given legitimacy, especially within the Two Treatises of Government1, were essential in how English courts came to terms with the emerging notions under current consideration., that being “the author”, “literary property” and copyright held over such works, together with the “right”1 of the author to commercially exploit the work that he had created. These notions, fully formed in contemporary society, only came to be considered and argued into existence after the necessary pre-conditions of the printing industry were established and the rights and interests of authors were expressly considered. Technological developments challenged the old notions of the role played by the creative person in the process of writing, and the rights and interests, if any, that should be afforded to that person. The new economy of the book-trade caused an 1 See Peter Laslett, Locke: Two Treatises of Government, (Cambridge University Press, Cambridge, 1988). 5 evolution in the history of ideas. The world would change profoundly, as knowledge and ideas came to be exchanged not by handwritten manuscripts but through mass production, achieved through the revolutionary process of moveable type and mechanical duplication. Existing laws provided no precedent on what rules applied to these new notions. It would be Locke’s theory that would greatly assist the English Courts in examining what was meant by “literary property” and what rights might be afforded to such property. Locke’s property theory would provide the legitimacy required to acknowledge “literary property” as an author’s claim-right capable of legal recognition. The Courts would expand Locke’s theory that property rights over tangible goods could be acquired through physical labour to an acceptance that property rights might be acquired over intangible goods through intellectual labour. Locke’s labour-mixing theory would be a suitable fit for the notion of “literary property” rights vesting in “the author”. The process would take 300 to 400 years to percolate through society and, ultimately, to come before the courts. Things would change dramatically over this period. At the time of the introduction of printing in 1476, the notion of “the author” as the individual most closely associated with the text, and the one who had property rights in the work, had little place as a legal or moral concept, with the author having at best very bare economic rights in the created work. Little regard was also afforded to the notion of the “text”, with the book-trade controlled by the printer-publishers who regarded text as a bare commodity, with limited concern for issues of textual accuracy and authorial attribution. By 1769 the “author” was acknowledged as playing a central role in the process, with ownership of the “literary work” vesting in the author, due to his creative labour. Literary property would be accepted as a new type of property, one held as a legal right and, in a primitive form, as a moral or human right. This acceptance of “literary property”, and its commercial exploitation through the institution of copyright, as a 6 new form of property right by the Courts was such a departure from long-standing ideas of what could be accepted as a property right that it would require as to how property rights could be acquired to provide it with justification and legitimacy. This acceptance of literary property as legal property would also give legitimacy, substance and context to the three evolving concepts under consideration. Various historical
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