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on education Diane Ravitch, Howard Gardner, Theodore Sizer, E. D. Hirsch, Jr., Journal of the American Academy of Arts & Sciences after the Deborah Meier, Patricia Graham, Thomas Bender, Joyce Appleby, culture wars Robert Boyers, Catharine Stimpson, Andrew Delbanco, Jeffrey Spring 2002 Mirel, plus a classic text by Antonio Gramsci, Joel Cohen & David Bloom on universal education as a global project, a story by Spring 2002: on intellectual property Madison Smartt Bell, a poem by Larissa Szporluk, and notes by Donald Kennedy, Arthur Kantrowitz, Richard Sennett, and on intellectual Richard A. Posner The law & economics of intellectual property Richard Shweder property James Boyle Fencing off ideas 13 Carla Hesse Intellectual property, 700 b.c.–a.d. 2000 26 on beauty Susan Sontag, Arthur C. Danto, Denis Donoghue, Dave Hickey, Arthur Goldhammer On Diderot & Condorcet 46 Alexander Nehamas, Robert Campbell, David Carrier, Margo Jefferson, Kathy L. Peiss, and Nancy Etcoff Diderot Letter on the book trade 48 Condorcet Freedom of the press 57 on international Stanley Hoffmann, Martha C. Nussbaum, Jean Bethke Elshtain, Roger Chartier Property & privilege in the republic of letter justice Stephen Krasner & Jack Goldsmith, Gary Bass, David Rieff, Adrian Johns Pop music pirate hunters 67 Anne-Marie Slaughter, Charles R. Beitz, Jonathan Schell, Carl Kaysen & George Rathjens, and Anthony Lewis Daniel J. Kevles Of mice & money 78 Rebecca S. Eisenberg & Richard R. Nelson Public vs. proprietary science 89 on time Thomas Gold, Michael Rosbash, Danielle Allen, Mary Douglas, Marcia Angell Anthony Grafton, J. Hillis Miller, David S. Landes, Michael & Arnold S. Relman Patents, pro½ts & American medicine 102 Gazzaniga, D. Graham Burnett, and Richard K. Fenn
poetry Paul Muldoon Unapproved road 112 on the meaning Alan Lightman, Evelyn Fox Keller, Peter Wolynes, Susan Haack, of science David Pingree, Peter Pesic, Margaret C. Jacob, and others ½ction Frederick Busch The rescue mission 115
on secularization a symposium featuring Martin E. Marty, Nikki Keddie, Henry notes Wendy Doniger on the Kamasutra 126 & fundamentalism Munson, and others Leo Breiman on McCarthyism at Berkeley 130 W. G. Runciman on Darwinism & sociology 133 Roald Hoffmann on poetry & science 137
letters on terrorism & evil, the concept of race, the virtues of inequality &c. 141 U.S. $9.95/Canada $12.95 ' '---s '-,>· '
J,�(«ffli (h\' >� ,11AtJ1�/f1• \i -: Inside front cover: “A PIRATE CRAFT. THE ROGUES! THIS OUGHT TO SINK ’EM.” From Punch, July 4, 1906, page [11]. See Adrian Johns on Pop music pirate hunters, pages 67–77. James Miller, Editor of Dædalus
Phyllis S. Bendell, Managing Editor and Director of Academy Publications
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Board of editors
Steven Marcus, Editor of the Academy
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Rosanna Warren, Poetry Adviser
Joyce Appleby (u.s. history, ucla), Stanley Hoffmann (government, Harvard), Donald Kennedy (environmental science, Stanford), Martha C. Nussbaum (law and philosophy, Chicago), Neil J. Smelser (sociology, Berkeley), Steven Weinberg (physics, University of Texas-Austin); ex of½cio: Patricia Meyer Spacks (President of the Academy), Leslie Cohen Berlowitz (Executive Of½cer)
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Michael Boudin (law, u.s. Court of Appeals), Wendy Doniger (religion, Chicago), Clifford Geertz (anthropology, Institute for Advanced Study), Carol Gluck (Asian history, Columbia), Stephen Greenblatt (English, Harvard), Thomas Laqueur (European history, Berkeley), Alan Lightman (English and physics, mit), Steven Pinker (neuroscience, mit), Diane Ravitch (education, nyu), Richard Shweder (human development, Chicago), Frank Wilczek (physics, mit)
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Dædalus was founded in 1955 and established as a quarterly in 1958. The jour- nal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbolizes the aspira- tion of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each sepa- rate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every ½eld of human endeavor. It was chartered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its more than four thou- sand elected members, continues to provide intellectual leadership to meet the critical challenges facing our world. Dædalus Spring 2002 Dædalus publishes by invitation only, and as- Issued as Volume 131, Number 2 sumes no responsibility for unsolicited manu- scripts. The views expressed are those of the © 2002 by the American Academy author of each article, and not necessarily of of Arts & Sciences. the American Academy of Arts & Sciences. Fencing off ideas: enclosure & the disappearance of the public domain All subscription orders, single-copy orders, and © 2002 by James Boyle change-of-address information must be sent in Pop music pirate hunters writing to the Dædalus Business Of½ce, 136 Irv- © 2002 by Adrian Johns ing Street, Suite 100, Cambridge ma 02138. Of mice & money: the story of the world’s ½rst Newsstand distribution by Eastern News Dis- animal patent tributors, Inc., 2020 Superior Street, Sandusky, © 2002 by Daniel J. Kevles oh 44870; Telephone: 800 221 3148. Unapproved road © 2002 by Paul Muldoon Periodicals postage paid at Boston ma, and at The rescue mission additional mailing of½ces. © 2002 by Frederick Busch Postmaster: Send address changes to Library of Congress Catalog No. 12-30299. Dædalus, 136 Irving Street, Suite 100, isbn 0-87724-033-7 Cambridge ma 02138, u.s.a. Editorial of½ces: Dædalus, Norton’s Woods, If you wish to reprint an article from Dædalus 136 Irving Street, Cambridge ma 02138. in another publication or to reproduce an arti- Phone: 617 491 2600. Fax: 617 576 5088. cle for classroom or other use, please send a Email: [email protected]. written request to: Permissions Manager, Dædalus, 136 Irving Street, Cambridge ma Dædalus (issn 0011-5266) is published quarter- 02138. Permission can be granted in most ly by the American Academy of Arts & Sci- cases; charges vary according to use of the ences. u.s. subscription rates: for individuals - copyrighted materials. If you have any ques- $33, one year; $60.50, two years; $82.50, three tions, call 617 491 2600 and speak to the per- years; for institutions - $49.50, one year; missions manager. $82.50, two years; $110, three years. Canadian subscription rates: for individuals - $42, one Printed in the United States of America by year; $78.75, two years; $109.50, three years; Cadmus Professional Communications, for institutions - $60, one year; $102, two Science Press Division, 300 West Chestnut years; $138.50, three years. All other foreign Street, Ephrata pa 17522. subscribers must add $7.00 per year to the The typeface is Cycles, designed by Sumner price of u.s. subscriptions. Replacement Stone at the Stone Type Foundry of Guinda copies for damaged or misrouted issues will be ca. Each size of Cycles has been separately sent free of charge up to six months from the designed in the tradition of metal types. date of original publication. Thereafter back copies are available for the current cover price Computer applications run by Peter Johnson of plus postage and handling. ris, Yale University. gst number: 14034 3229 rt. Richard A. Posner
The law & economics of intellectual property
Legal disputes over intellectual prop- ter nearly perpetual. And the new “busi- erty have exploded in recent years. No ness method” patents create the poten- ½eld of law is in greater ferment. And in tial for inventors of new methods of no ½eld of law have judges and scholars doing business to obtain enormous experienced more dif½culty recently in monopoly power (imagine if the ½rst getting their bearings. person to think up the auction had been The increase in intellectual property able to patent it); such patents also cre- litigation was made inevitable by the rise ate a reward greatly in excess of the cost of the information economy, an econo- of the invention. my built on intellectual property–which The emergence of new technologies is now, incidentally, America’s largest has further caused the law to lose its export. Recognition of the importance bearings, and this in two respects. First, of intellectual property in the current one of the most important of these new American scene is one of the things that technologies, computer software, is lie behind the seemingly relentless ex- characterized by high monopoly poten- pansion of intellectual property rights in tial conjoined with an extreme disparity modern law. between the cost of creation and the cost Two illustrations of that expansion: of making and distributing copies, the copyright term has been repeatedly which indeed approaches zero whenever enlarged in recent years, to the point the copy is made electronically and is where copyrights are as a practical mat- distributed over the Internet. Property rights in software may enable its creators to reap enormous pro½ts by charging Richard A. Posner is a judge on the U.S. Court of prices that inhibit distribution, while Appeals for the Seventh Circuit and also teaches at denying property rights may, in the in- the University of Chicago Law School. A Fellow terest of discouraging excessive invest- of the American Academy since 1982, Judge ment in software creation and of maxi- Posner has played a key role in the law and eco- mizing distribution, kill the goose that nomics movement. A proli½c author, he has tack- lays the golden eggs by depriving the cre- led a wide variety of topics, from sex and the law ators of software of the pro½t opportuni- to the disputed presidential election of 2000. His ties needed to ½nance that creation. That many books include “Economic Analysis of Law” is the essential dilemma in crafting a (5th edition, 1998) and, most recently, “Public sensible, ef½cient regime of intellectual Intellectuals: A Study of Decline” (2002). property rights.
Dædalus Spring 2002 5 Richard A. Second, the products of the new tech- simply that the holder of the right is en- Posner on intellectual nologies are sometimes hard to ½t into titled to invoke the aid of the state to property the law’s pigeonholes. Computer soft- prevent anyone from entering upon the ware is a kind of text, which implies that land without his consent. There are all copyright is the proper regime; a kind of manner of quali½cations of this right machine, which implies that patent is (eminent domain, for example–the the proper regime; and a kind of algo- landowner can’t prevent the government rithm, which traditionally has not been from taking his land for a public use, al- protected by either body of law. In bio- though he can insist that the goverment technology, the creation of new forms of pay him just compensation for the tak- life by genetic engineering poses acutely ing), but they can be ignored. the question of just what should be re- What cannot be ignored is why prop- garded as patentable technology. erty rights are granted–what social A further example of how new tech- functions they serve. Two are para- nologies can confound legal classi½- mount. First, without exclusive rights to cations is again drawn from computer the use of tracts of land or other valuable software. Software manufacturers physical objects, these properties would increasingly are bypassing the limita- be overused–if anyone has the right to tions (discussed below) on the duration graze his cattle on a pasture, the pasture and scope of copyrights by selling direct- will be overgrazed and hence depleted ly to their customers, pursuant to con- prematurely, because each cattle owner tracts that limit the customer’s rights in will tend to ignore the costs that the the software more tightly than copyright grazing by his cattle imposes on the would do. The signi½cance of intellectu- other users of the pasture. Second, with- al property rights, as of rights to physical out exclusive rights, there will be insuf½- property, is that they are enforceable cient incentives to invest in improving against strangers. A trespass is enjoin- property: if you cannot be assured of able even if the trespasser never prom- being able to reap where you have sown, ised not to enter your land. But if the you won’t sow, and the land will lie fal- only people who have access to your low. property happen to be people with It is understood, however, that the whom you have a contract, you can regu- social bene½ts of property rights must be late their access by means of contract balanced against the costs. When prop- and forget about property law. erty has little value relative to the costs The information economy and its as- of creating or enforcing a property right, sociated novel technologies arose the right is withheld. Here is a homely against the background of a mature sys- example: owners of shopping centers do tem of intellectual property law, one that not charge a price for parking in the had evolved over centuries out of an- shopping center’s parking lot. In effect, cient concepts developed to deal with the owner declines to enforce his proper- tangible property. To understand the law ty right in the lot, treating it instead as of intellectual property, and the muddle the common property of the shopping we’re now in, you must ½rst understand center’s customers, like a common pas- the law of physical property and the so- ture. This is because charging a fee for cial objectives of that law. entry to the lot, while it would have an When lawyers speak of a “property economizing effect (the lot could be right,” say to a parcel of land, they mean smaller if access to it were rationed by
6 Dædalus Spring 2002 price, just as tolls limit highway traf½c), ing? The answer is No, for the same rea- The law & economics of would cost more than it would be son that property rights are recognized intellectual worth; part of the cost would be dis- even in “natural” pastures, that is, pas- property couraging people from shopping at the tures not created or improved by invest- center. ing, unlike ordinary farmland: there We can follow these themes into the would be overuse. The advertising value law of intellectual property, but with of the celebrity would be reduced if the important quali½cations. One is that, in celebrity’s name and likeness could be contrast to the grazing example, the use attached to an inde½nite number of dif- of intellectual property by one person ferent products. There can be “conges- usually doesn’t diminish its value to tion” even of intellectual property. And other users. That’s because the copies of this is true whether or not the celebrity such property can be multiplied inde½- is still alive. nitely at little added cost. If I read a Still, in general, the use of intellectual book, I do not deprive others of the use property by one person does not reduce of the intellectual property constituting the value of its use by another. Stated that book, because they can buy and differently, the marginal cost of intellec- read other copies without interfering tual property–the cost of adding one with me. Indeed, widespread use of in- more user of it–is very low. As I noted tellectual property can actually increase earlier, it is essentially zero in the case of the value of the property; in effect, addi- computer software, which can be deliv- tional copies have negative cost, when ered to a new user over the Internet– the value they confer is taken into ac- and it can even be negative. count. A popular book or movie be- This has led some students of intellec- comes a focus of discussion; the more tual property to think it would be desir- popular it is, the more “copies” of it (in able to make such property available for effect) there are, the greater the value. free to anyone who wanted to use it, There is an interesting exception, since, in general, optimum output is however, concerning what is called the achieved by equating price to marginal “right of publicity,” confusingly classi- cost, and in the case of much intellectual ½ed as part of the “right of privacy.” A property this means setting the price at person has a right not to have his name (or only trivially above) zero–or even or likeness used for advertising or other subsidizing distribution. commercial purposes without his con- But as is now well understood, such a sent. This is a right particularly valued policy would be disastrous. It would kill by celebrities. Should there be such a the incentive to create the intellectual right? Does it have useful incentive ef- property in the ½rst place, outside of the fects, comparable to the effect of grant- relatively rare cases in which the cre- ing property rights to land to create the ators have powerful nonmonetary in- incentive to cultivate the land? And centives to create such property, or in even if it does, what should happen which its creation is ½nanced other than when the celebrity dies? Should the by sale or lease of the property (by taxa- right die with the celebrity, on the theo- tion, for example, or charitable dona- ry that he will no longer be “incen- tion–such as the patronage of authors tivized” by it to cultivate his image and by wealthy people, in the old days). We that therefore anyone should be free to need not suppose that most creative peo- use his name and likeness in advertis- ple are greedy to realize that if they can-
Dædalus Spring 2002 7 Richard A. not obtain a pecuniary bene½t from pro- contained in them is identical. Worse, Posner on intellectual ducing intellectual property they will not two different books may be suf½ciently property be able to ½nance the costs (including similar to raise a question of whether the the costs of their time) required to pro- intellectual property in one was appro- duce it. priated by the author of the other. If And so the state de½nes, recognizes, copyright were perpetual, James Joyce or and enforces property rights in intellec- his publisher would have become em- tual property. The most important such broiled in litigation with the heirs of rights are copyrights and patents, the Homer over whether Ulysses infringed former a property right in expression, the Odyssey, and Leonard Bernstein with the latter a property right in useful ideas. the heirs of Ovid over whether West Side A third very common form of intellectu- Story infringed Pyramus and Thisbe (not al property, trademarks, is misnamed, to mention Romeo and Juliet and A Mid- and I will not discuss it extensively. summer Night’s Dream, themselves argu- Trademarks are merely identi½ers, de- ably infringements of Ovid’s story). If signed to protect consumers from being patents were perpetual, heirs of Leo- misled regarding the origin or quality of nardo da Vinci would be litigating over particular products or services. There rights to basic aircraft technology. are many interesting legal and economic The tracing problem is more serious issues concerning trademarks, but they for copyrights than for patents. The Pat- are not centrally issues of property. Also ent and Trademark Of½ce contains de- of importance in the broad domain of scriptions of patents classi½ed by subject intellectual property is the right of pub- matter, and it is feasible though often licity, which I’ve already mentioned, and dif½cult to search through these descrip- trade secrets, which are an alternative to tions and identify the patents that a pro- patents as a method of protecting inno- posed new patent may infringe. But it is vations from being copied without com- impossible as yet to search through the pensation to the inventor. But I will not entire body of copyrighted materials. discuss trade secrets. That is one reason why copyright protec- Copyrights and patents are both limit- tion is more limited than patent protec- ed in duration, unlike rights in physical tion. A copyright is infringed only if it is property, and an initial question is why? copied; if it is duplicated innocently, There are several answers, and they there is no infringement. A patent is in- point to the fundamental differences be- fringed by being duplicated, even if the tween physical and intellectual property. duplication was innocent–a case of in- One answer is the tracing problem, dependent discovery. which looms large in the de½nition and Even in the case of copyright, however, enforcement of intellectual property the tracing problem is really rather su- generally. Items of physical property are per½cial. If copyright owners were re- visibly distinct; this is true even of adja- quired to renew their copyrights periodi- cent parcels of land, once the boundary cally by ½ling a notice of renewal in a has been mapped and fenced. But one public registry, it would be simple piece of intellectual property is not visi- enough for creators of new intellectual bly distinct from others; it is identi½ed property to determine whether a given only by comparison with others. Two work was in the public domain. copies of the same book are physically There is a more serious concern with distinct, but the intellectual property giving the owner of intellectual property
8 Dædalus Spring 2002 too expansive a right. If copyright were ly most important form of property, The law & economics of perpetual, Ovid’s heirs would probably land, because virtually all land is owned. intellectual win their suit against Leonard Bernstein; (The situation was quite otherwise in property Shakespeare’s heirs certainly would the age of exploration and discovery of (West Side Story is based directly on new continents.) There would be no Romeo and Juliet)–except they might lose rent-seeking problem in the buried-trea- in turn to Ovid’s heirs! This means that sure example if someone owned the cutting off copyright protection after a treasure and were merely offering a re- speci½ed period shorter than eternity ward to the ½nder–the owner would set not only limits tracing costs, but also re- the reward at a level designed to obtain duces the pecuniary gain to the owner of the ½nding service at least cost. the copyright. But, as noted, the problem of rent There are two reasons why that might seeking is acute in the “land grab” phase be a good thing. First, intellectual prop- of development–and that is the phase erty presents a more serious problem of we’re perpetually in with regard to intel- what economists call “rent seeking” lectual property. For remember that in- than physical property does. A “rent,” in tellectual property is created rather than economics, is not a rental; it is an excess found, which means that if rights to in- of revenue over cost. It is pure pro½t, tellectual property are de½ned too which is to say pro½t in excess of the cost broadly, the rents generated by them will of capital (which is not “pro½t” in an be so great that excessive resources will economic sense but merely another cost be drawn into efforts to be the ½rst to of doing business). Rent seeking can be create a valuable piece of intellectual bad from a social standpoint because it property and thus to obtain the property can lead to excessive investment. right to it. Limiting the duration of the An example is a hunt for buried treas- property right is one way of cutting ure. If the treasure has a value of $10 mil- down its value to the owner and thus lion, which will be awarded to the ½rst reducing the amount of rent seeking. ½nder, there will be a race to be ½rst that But, once again, this concern must not may eat up the entire pro½t. Suppose be exaggerated. Because of discounting that the cost to a particular ½nder of to present value (that is, the preference ½nding the treasure by April 1, 2002, for money now over the same sum of would be $1 million. Would-be ½nders money years or decades hence), the dif- might incur much greater costs in vying ference in value to the creator of intellec- to ½nd it sooner–for example, a ½nder tual property of, say, a seventy-½ve-year who was con½dent that by expending an term and a thousand-year term would additional $8 million he could win the actually be very slight, because the pres- race by ½nding the treasure on March 31 ent value of a dollar not to be received would consider the expenditure worth- for seventy-½ve years (or one hundred or while, since it would yield him a pro½t one thousand years) is very slight. of $1 million. But the additional cost A second reason for wanting to limit incurred to win the race would be wast- the potential reward to owners of intel- ed from a social standpoint, because the lectual property rights is the previously social bene½t of ½nding the treasure a noted effect of those rights in limiting day earlier would be negligible. the distribution and hence use of intel- The problem of rent seeking is no lectual property. The fees that the owner longer acute in the case of the historical- of intellectual property charges for its
Dædalus Spring 2002 9 Richard A. use deflect some users to other products use the character of Mickey Mouse, the Posner on intellectual that may cost society more to produce public may become tired of him, and his property (remember that the marginal cost, the value may drop to zero. Suppose, more- cost of adding one more user, of intellec- over, that to create a demand for an old tual property is often close to, at, or even expressive work requires a current in- below zero), resulting in a loss of ef½- vestment. What publisher would incur ciency. Some of those users, moreover, the expense and risk of developing a de- may be other creators of intellectual mand for an eighteenth-century author property, so that expansive intellectual whose works were long out of copyright property rights may actually reduce the if the publisher acquired no property creation of intellectual property–an im- right in the works, so that if his expendi- portant and counterintuitive point to tures succeeded in creating a demand for which I’ll return. them, any other publisher could publish Against all this must be weighed the the works without incurring the expense incentive effects of allowing the proper- that he had incurred? In both the Mic- ty owner to obtain revenue from proper- key Mouse case and in this case, there is ty that may have cost him a great deal to overuse because of lack of property create. But it doesn’t follow that he has rights, but in the ½rst case it leads to the to be able to collect fees in perpetuity in value of the intellectual property plum- order to recoup his investment. Perpet- meting, and in the second case it impairs ual fees may result in a reward that ex- the incentive to invest in intellectual ceeds the cost of creating the property in property. the ½rst place, thus resulting in a need- The solution might be a system of in- less restriction of the use of the property de½nitely renewable copyrights. The ini- along with the wasteful expenditures tial grant might be for twenty-½ve years, caused by rent seeking. renewable thereafter every ½ve years. A It is true, as I have said, that because stiff fee would assure that most works most people discount future income returned to the public domain. But those steeply, the excess reward that perpetual works requiring continuing investment fees would confer on creators of intellec- or careful management to avoid con- tual property is somewhat illusory. Few sumer exhaustion would continue to be people will work harder today to gener- owned property. ate some additional income to their Copyrights and patents are limited in heirs (if any) a century hence. But this other ways besides duration. The copy- means that perpetual fees have very little right owner is permitted to copyright upside in creating incentives for the cre- only the expressive dimension of the ation of intellectual property; the tracing work and not the basic ideas or motifs. costs, and the effect of perpetual copy- Even if copyright were perpetual, Ho- right in complicating the use of existing mer’s heirs could not demand a royalty intellectual property as an input into for every epic poem written, since the new intellectual property, become deci- idea of the epic poem (or of rhyme or sive objections to perpetual rights. particular rhyme schemes, or of a story Disregarded in this analysis, however, of a war to recover an abducted beauty) is the point made earlier in connection would be considered to fall on the idea with the right of publicity–the potential side of the idea/expression divide. Simi- congestion cost if valuable property is larly, patents are limited to ideas that are unowned. For example, if anyone can useful (in the sense of practical, utilitari-
10 Dædalus Spring 2002 an), novel, and nonobvious, and so are A complication is created by the merg- The law & economics of not available for the fruits of basic re- er of “idea” and “expression” in some intellectual search, such as Euclidean geometry, forms of modern art, such as Andy War- property Planck’s constant, or e = mc2. hol’s Brillo Box, a work of art that is such If basic scienti½c ½ndings were pat- not by virtue of any novel or distinctive entable, the tracing problem would be expression–it is indistinguishable from particularly acute. Even more important, an ordinary box of Brillo–but solely by patents on basic research would some- virtue of its being treated as art by col- times generate grossly excessive rev- lectors and museums. In effect, this kind enues, relative to costs, which in the case of art is simply the idea of treating an of much basic research are low. everyday object as a work of art. Similarly, if valuable applications of I have thus far depicted the basic chal- scienti½c theory (as distinct from basic lenge in the ½ne-tuning of intellectual research)–“inventions” or new technol- property rights as striking the right bal- ogy–could be patented in perpetuity, ance between the interest in encourag- one untoward result would be to limit ing the production of intellectual prop- the use of inventions, and another might erty and the interest in promoting its be to draw excessive investment into widespread use, though I have noted innovation. Bear in mind that the patent some other concerns as well (such as process, like my hypothetical hunt for overinvestment and tracing costs). buried treasure, is a race. Whoever But one of the most interesting charac- crosses the ½nish line ½rst, if only by a teristics of intellectual property, which day, receives the entire value of the differentiates it sharply from physical patent, not the value of accelerating the property, is that–paradoxically–limit- invention by one day. So we want to ing intellectual property rights may make sure that the rewards of owning a often be necessary to maximize the cre- patent are not so huge that they operate ation of intellectual property–in which to suck a disproportionate fraction of event the conflict between the creation society’s scarce resources into efforts to interest and the use interest disappears. I accelerate the pace of invention. have given examples of this important As for allowing basic ideas, themes, point already. Consider now the “fair motifs, character types, and so forth to use” doctrine of copyright law, which be copyrighted, the effect in increasing permits in speci½ed circumstances some the incentives to create new literature, copying of a copyrighted work without art, and entertainment by increasing the having to obtain the owner’s consent. ½nancial rewards would be more than An example is quoting from and summa- offset by the effect in discouraging that rizing a copyrighted book in a review of creation by forcing every new writer to the book. Suppose such copying re- negotiate permission with the heirs of quired the consent of the book’s author long-deceased predecessors. Literature, or publisher. Then book reviews would art, and entertainment to a great extent lack credibility, since readers would play variations on a rather simple, stock know that the reviewer had a strong in- set of themes, plots, character types, and centive to review the book favorably lest so forth. The distinction, the quality, of publishers refuse to consent to his quot- creative expression lies precisely in the ing from subsequent books, or charge variations, and we want to encourage him an exorbitant fee for permission to these by permitting the creators to draw quote. Publishers and authors as a group freely on the stock. (though maybe not the publishers and Dædalus Spring 2002 11 Richard A. authors of the worst books) would be creation of subsequent intellectual prop- Posner on intellectual hurt by a system that deprived readers of erty (because of the tracing problem and property the information contained in reviews by because the principal input into most people not beholden to the publisher. intellectual property is previously creat- The publishing industry would lose the ed intellectual property). Property rights most credible form of advertising of its can limit the distribution of intellectual wares. property and can draw excessive re- Similarly, but more fundamentally, sources into the creation of intellectual anyone familiar with the practices of property, and away from other socially both authors and inventors knows that valuable activities, by the phenomenon most intellectual property, even of a dis- of rent seeking. tinctly innovative sort, builds heavily on Striking the right balance, which is to previous intellectual property (Ulysses is say determining the optimal scope of again an example). The existing stock of intellectual property rights, requires a ideas and expression is, to a great extent, comparison of these bene½ts and costs– the raw material from which new intel- and really, it seems to me, nothing more. lectual property is fashioned. The problems are not conceptual; the The cheaper a producer’s raw materi- concepts are straightforward. The prob- als, the cheaper the ½nal product and so lems are entirely empirical. They are the greater the output. If Joyce had had problems of measurement. to negotiate with Homer’s heirs over the In addition, we do not know how use of material from the Odyssey in his much intellectual property is in fact so- book, it would have taken him longer to cially useful, and therefore we do not write the book; if negotiations had bro- know how extensive a set of intellectual ken down, he might not have been able property rights we should create. For all to write it at all. we know, too many resources are being We want, therefore, a process by sucked into the creation of new biotech- which intellectual property, having been nology, computer software, ½lms, phar- legally protected in order to create the maceuticals, and business methods be- proper incentives, can eventually be re- cause the rights to these different forms turned to the public domain, there to be of intellectual property have been too available as cheap raw material for fu- broadly de½ned. ture creators of intellectual property. Unfortunately, the empirical problems This is another important reason for are acute–and little progress has been limiting both the duration of intellectual made as yet toward their solution. We property rights and their scope. urgently need more empirical evidence. The economic analysis sketched in this The task is daunting, for it requires that paper is simple, largely intuitive, com- we be able to estimate both the social monsensical, and, I venture to suggest, gains from additional intellectual prop- fairly uncontroversial. To summarize it, erty of different types and the social granting property rights in intellectual costs of trying to induce the creation of property increases the incentive to cre- the additional intellectual property by ate such property, but the downside is means of adjustments in the regime of that those rights can interfere with the intellectual property rights.
12 Dædalus Spring 2002 James Boyle
Fencing off ideas: enclosure & the disappearance of the public domain
The law locks up the man or woman property. (Although we refer to it as “the Who steals the goose from off the common enclosure movement,” it was actually a But leaves the greater villain loose series of enclosures that started in the Who steals the common from off the goose. ½fteenth century and went on, with dif- fering means, ends, and varieties of state The law demands that we atone involvement, until the nineteenth.) The When we take things we do not own poem manages in a few lines to criticize But leaves the lords and ladies ½ne double standards, expose the arti½cial Who take things that are yours and mine. and controversial nature of property The poor and wretched don’t escape rights, and take a slap at the legitimacy If they conspire the law to break; of state power. And it does it all with This must be so but they endure humor, without jargon, and in rhyming Those who conspire to make the law. couplets. Sir Thomas More went further, though The law locks up the man or woman he used sheep rather than geese to make Who steals the goose from off the common his point. He argued that enclosure was And geese will still a common lack not merely unjust in itself, but harmful Till they go and steal it back. in its consequences. It was a cause of eco- nomic inequality, crime, and social dis- his poem is one of the pithiest con- T location. demnations of the English enclosure movement, the process of fencing off Your sheep that were wont to be so meek common land and turning it into private and tame, and so small eaters, now, as I hear say, be become so great devourers and so wild, that they eat up, and swallow James Boyle is a professor of law at Duke Law down the very men themselves. They con- School. He is the author of “Shamans, Software, sume, destroy, and devour whole ½elds, and Spleens: Law and the Construction of the houses, and cities. For look in what parts Information Society” (1996) and numerous law- of the realm doth grow the ½nest and review articles about intellectual property law and therefore dearest wool, there noblemen legal and social theory. He is currently working on and gentlemen . . . leave no ground for a book about the public domain. His work can be tillage, they enclose all into pastures; they found at
14 Dædalus Spring 2002 time the property in question is intangi- moners, Mr. Moore ½nds that his natu- Fencing off ble, existing in databases, business ralistic and traditional property claims ideas methods, and gene sequences. are portrayed as impediments to innova- Take the human genome as an exam- tion. Like the bene½ciaries of enclosure, ple. The opponents of “enclosure” have the doctors are granted a property right claimed that the genome “belongs to to encourage ef½cient development of a everyone,” that it is literally “the com- wasted resource. mon heritage of humankind.” They say Of course, like the ½rst enclosure that the code of life ought not and per- movement, this new one has its defend- haps in some sense cannot be owned by ers. To the question “should there be an individual or a corporation. When patents over human genes?” the answer patents have been granted for stem cells will be “private property saves lives.” and gene sequences, critics have mused Only by extending the reach of property darkly about the way in which the state rights can the state guarantee the invest- is simply handing over monopoly power ment of time, ingenuity, and capital nec- to private parties, potentially thwarting essary to produce new drugs and gene future research and innovation. The new therapies. Private-property rights are a monopolists have names like Geron, necessary incentive to research; econo- Celera, and Human Genome Sciences, mists need only worry about how to al- and their holdings are in the form of locate these rights most ef½ciently. Or so patent portfolios rather than oil wells or say the advocates of private-property steel plants. rights. Alongside these reports about the The genome is not the only area to bene½ciaries of the new property scheme have been partially “enclosed” in the run news stories about those who were past decade. In recent years, intellectual not so fortunate, the commoners of the property rights have been dramatically genetic enclosure. Law students across expanded in many different ½elds of America now read Moore v. Regents, a human endeavor–from business- California Supreme Court case deciding method patents to the Digital Millenni- that poor Mr. Moore had no property um Copyright Act, from trademark right to a cell line derived from his antidilution rulings to the European spleen. In this case, the court decided Database Protection Directive. that giving property rights to “sources” In 1918, the American jurist Louis would make it more dif½cult for scien- Brandeis con½dently claimed that “[t]he tists to share cell lines with fellow re- general rule of law is, that the noblest of searchers–reading the decision, one can human productions–knowledge, truths almost picture the Styrofoam coolers ascertained, conceptions, and ideas– criss-crossing the country by Federal become, after voluntary communication Express in an orgy of altruistic flesh to others, free as the air to common swapping. Yet this fear of the pernicious use.” At the time that Brandeis made effects of property rights did not last for that remark, intellectual property rights long. In another portion of the opinion were the exception rather than the rule; the court speaks approvingly of the it was widely agreed that ideas and facts patent granted to the doctors whose must always remain in the public do- inventive genius created a billion-dollar main. But that old consensus is now cell line from Mr. Moore’s “naturally under attack. Long-standing limits on occurring raw material.” Like the com- the reach of intellectual property–the
Dædalus Spring 2002 15 James Boyle antierosion walls around the public be strictly limited in both time and on intellectual domain–are being eaten away each year. extent. property The annual process of updating my Today, these traditional assumptions syllabus for a basic intellectual property about intellectual property law are under course provides a nice snapshot of what attack. Some of the challenges are sub- is going on. I can wax nostalgic looking tle. In patent law, stretched interpreta- back to a ½ve-year-old text, with its con- tions of novelty and nonobviousness ½dent list of the subject matter that allow intellectual property rights to intellectual property rights couldn’t move closer and closer to the underlying cover, the privileges that circumscribed datalayer; gene sequence patents come the rights that did exist, the length of very close to being rights over a particu- time before a work fell into the public lar discovered arrangement of data–C’s, domain. In each case, the old limits have G’s, A’s, and T’s. Other challenges are recently been changed or challenged. overt; the European Database Directive Patents are increasingly stretched out does (and the various proposed database to cover “ideas” that twenty years ago all bills in the United States would) create scholars would have agreed were un- proprietary rights over compilations of patentable: the so-called business meth- facts, often without even the carefully od patents, which cover such “inven- framed exceptions of the copyright tions” as auctions or accounting meth- scheme, such as the usefully protean cat- ods, are an obvious example. Most trou- egory of “fair use.” bling of all are the attempts to introduce The older strategy of intellectual prop- intellectual property rights over mere erty law was a “braided” one: thread a compilations of facts. If Anglo-American thin layer of intellectual property rights intellectual property law had an article around a commons of material from of faith, it was that unoriginal compila- which future creators would draw. Even tions of facts would remain in the public that thin layer of intellectual property domain. This was “no mere accident of a rights was limited so as to allow access statutory scheme,” as the Supreme to the material when the private-proper- Court once put it: protecting the raw ty owner might charge too much, or just material of science and speech is as refuse; fair use allows for parody, com- important to the next generation of mentary, and criticism, and also for innovation as the intellectual property “decompilation” of computer programs rights themselves. The system would so that Microsoft Word’s competitors offer a limited monopoly for an inven- can reverse-engineer its features in order tion or an original expression of ideas, to make sure that their program can con- but the monopoly was to be tightly con- vert Word ½les. (Those who prefer topo- ½ned to the layer of invention or expres- graphical metaphors might imagine a sion. The facts below, or the ideas above, quilted pattern of public and private would remain free for all to build upon. land, with legal rules specifying that cer- Even the stuff that could be protected by tain areas–beaches, say–can never be intellectual property–the drug or the privately owned, and accompanying poem, say–was supposed to pass into rules giving public right of way through the public domain after a certain num- private land if there is a danger that ber of years. As Jefferson and Macaulay access to the commons might otherwise both observed, intellectual property be blocked.) rights were necessary evils. They should From the inception of intellectual
16 Dædalus Spring 2002 property law in the eighteenth century and networked “commons of the mind,” Fencing off until quite recently, protection of the circa 2002, differs greatly from the ideas public domain–the intangible com- grassy and isolated common plots of mons–was one fundamental goal of the land that dotted England circa 1400.2 law in most nations. In the new vision of Some of the key differences should lead intellectual property, however, property us to question whether stronger intellec- rights should be established everywhere; tual property rights are really either nec- more is better. Expanding patentable essary or desirable. and copyrightable subject matter, For example, consider the well-known lengthening the copyright term, giving fact that a digital text, unlike a plot of legal protection to “digital barbed wire,” land, can be used by countless people even if it is used in part to prevent fair simultaneously without mutual interfer- use: each of these can be understood as a ence or destruction of the shared vote of no con½dence in the productive resource. Unlike an earthly commons, powers of the commons. We seem to be the commons of the mind is generally shifting from Brandeis’s assumption what economists call “nonrival.” Many that the “noblest of human productions uses of land are mutually exclusive. If I are free as the air to common use” to the am using the ½eld for grazing, it may assumption that any human production left open to free use is inef½cient, if not 2 The differences are particularly strong in the tragic. arguments over “desert”–are these property rights deserved, or are they simply violations of the public trust, privatizations of the com- So far I have argued that there are pro- mons? For example, some would say that we found similarities between the ½rst never had the same traditional claims over the enclosure movement and our contempo- genetic commons that the victims of the ½rst rary expansion of intellectual property. enclosure movement had over theirs; this is Today, as in the ½fteenth century, propo- more like newly discovered frontier land, or perhaps even privately drained marshland, than nents and opponents of enclosure are it is like well-known common land that all have locked in battle, hurling at each other traditionally used. In this case, the enclosers incommensurable claims about innova- can claim (though their claims are disputed) tion, ef½ciency, traditional values, the that they discovered or perhaps simply made boundaries of the market, the saving of usable the territory they seek to own. The lives, the loss of familiar liberties. Once opponents of gene patenting, on the other hand, turn more frequently than the farmers of again, opposition to enclosure is por- the eighteenth century to religious and ethical trayed as economically illiterate; the arguments about the sanctity of life and the bene½ciaries of enclosure tell us that an incompatibility of property with living systems. expansion of property rights is needed in These arguments, or the appeals to free speech order to fuel progress. Indeed, the that dominate debates over digital intellectual property, have no precise analogue in debates post–Cold War “Washington Consen- over hunting or pasturage, although, again, sus” is invoked to claim that the lesson there are common themes. For example, we are of history itself is that the only way one already seeing nostalgic laments of the loss of gets growth and ef½ciency is through the immemorial rights of Internet users. At the markets; property rights, surely, are the same time, the old language of property law is turned to this more evanescent subject matter; sine qua non of markets. a favorite article title is “The Ancient Doctrine But if there are similarities between of Trespass to Websites” (I. Trotter Hardy, the two enclosure movements, there are “The Ancient Doctrine of Trespass to Web also crucial differences. The digitized Sites,” Journal of Online Law [Oct. 1996]: art. 7).
Dædalus Spring 2002 17 James Boyle interfere with your plans to use it for and transmission costs implies a corre- on intellectual growing crops. By contrast, a gene sponding need to increase the strength of property sequence, an MP3 ½le, or an image may intellectual property rights. be used by multiple parties; my use does Imagine a line. At one end sits a monk, not interfere with yours. To simplify a painstakingly transcribing Aristotle’s complicated analysis, this means that Poetics. In the middle lies the Gutenberg the depredations through overuse that printing press. Three-quarters of the affect ½elds and ½sheries are generally way along the line is a photocopying not a problem with intellectual property. machine. At the end lies the Internet. At (The exceptions to this statement turn each stage, copying costs are lowered: out to be fascinating; in the interest of Aristotle’s text becomes ever more freely brevity I will ignore them entirely.) and widely accessible; indeed, the com- Thus, one cause of tragedy on the plete text is currently available in both earthly commons generally does not Greek and English to anyone with access arise on the commons of the mind. to the Internet (at
18 Dædalus Spring 2002 and dramatically increases the size of one of the arguments for the ½rst enclo- Fencing off the potential market. sure movement. (Lovers of Patrick ideas Is the “net” result, then, a loss to O’Brian’s novels may remember Mat- rights-holders such that we need to in- urin’s stolid silence in the face of an crease protection in order to maintain a admiral’s increasingly vehement insis- constant level of incentives? The answer tence that enclosure was essential to is not self-evident. produce the corn necessary to ½ght the A large, leaky market may actually Napoleonic war.) produce more revenue than a small, Here we come to another big differ- tightly controlled market. What’s more, ence between the commons of the mind the same technologies that allow for and the earthly commons. As has fre- cheap copying also allow for swift and quently been pointed out (by Jessica encyclopedic search engines–the best Litman, Pamela Samuelson, and Richard detection device for illicit copying ever A. Posner, among others), information invented. It would be impossible to say, products are frequently made out of on the basis of the evidence we have, fragments of other information prod- that owners of protected content are ucts; one person’s information output is better or worse off as a result of the someone else’s information input. These Internet. inputs may be snippets of code, discov- My intuition–as well as our historical eries, prior research, images, genres of experience with prior “dangerous” tech- work, cultural references, databases of nologies such as the vcr–points single nucleotide polymorphisms–all strongly to the possibility that copyright can function as raw material for future holders are better off. In any case, there innovation. And every potential increase simply isn’t enough evidence, either to of protection over such products also support my intuition or to support the raises the costs of, or reduces access to, conclusion that as copy costs decline the raw material to create new products. intellectual property rights must be The right balance is dif½cult to strike. strengthened. Furthermore, given the One Nobel Prize-winning economist has known static and dynamic costs of claimed that it is actually impossible to monopolies, and the constitutional produce an “informationally ef½cient” injunction to encourage the progress of market.3 Whether or not it is impossible science and useful arts, the burden in theory, it is surely a dif½cult problem should be on those requesting expanded in practice. In other words, even if en- intellectual property rights to prove closure of the arable commons always their value. produced gains (itself a subject of Another argument commonly offered debate), enclosure of the information in defense of granting new intellectual commons clearly has some potential to property rights stresses the increasing harm intellectual innovation. More importance of products that use, property rights, even though they sup- embody, or process information in posedly offer greater incentives, do not today’s global economy. Perhaps the necessarily ensure greater intellectual commons of the mind requires enclo- sure because it is now such a vital sector 3 Sanford J. Grossman and Joseph E. Stiglitz, “On the Impossibility of Informationally of economic activity. The importance of Ef½cient Markets,” American Economic Review 70 agriculture to the economy was certainly (1980): 393.
Dædalus Spring 2002 19 James Boyle productivity. Sometimes just the oppo- ware is released under a series of licens- on 4 intellectual site may be true. es, the most important being the Gen- property eral Public License, or gpl. The gpl My arguments so far have taken as a speci½es that anyone may copy the soft- given the various problems to which ware, provided the license remains modern intellectual property laws have attached and the “source code” for the been a response. I have discussed the software always remains available.6 extent to which the logic of enclosure Users may add to or modify the code, works for the commons of the mind as may build on it and incorporate it into well as it did for the arable commons, their own work, but if they do so then taking into account the effects of an in- the new program created is also covered formation society and a global Internet. by the gpl. Some people refer to this as Remember that when I speak of enclo- the “viral” nature of the license; others sure, I am talking about increases in the ½nd the term offensive. The point, how- level of rights: protecting new subject ever, is that the open quality of the cre- matter for longer periods of time, crimi- ative enterprise spreads; it is not simply nalizing certain technologies, making it a donation of a program or a work to the illegal to cut through digital fences even public domain, but a continual accretion if they have the effect of foreclosing pre- in which all gain the bene½ts of the pro- viously lawful uses, and so on. gram on pain of agreeing to give their What I have not yet done is ask own additions and innovations back to whether the brute fact of the Internet the communal project. actually unsettles old assumptions and The open-source software movement forces us to reconsider the need for in- has produced software that either rivals centives–at least in certain areas. But or exceeds the productive capacities of this is a question that cannot be evaded. conventional proprietary software. Its For anyone interested in the way that adoption on the enterprise level is computer networks may embody a new impressive, as are the various technical mode of collaborative production, an encomia to its strengths. exemplary case to study is the open- But the most remarkable aspect of the source software movement.5 This soft- open-source software movement is harder to see. It functions as a new kind 4 For a more technical account, see James of social system: many of those who Boyle, “Cruel, Mean, or Lavish? Economic contribute to the movement by writing a Analysis, Price Discrimination and Digital part of the software do so as volunteers, Intellectual Property,” Vanderbilt Law Review 536 (2000): 2007,
20 Dædalus Spring 2002 without direct remuneration. Here, it explanation for why the system works is Fencing off seems, we have a classic public good– this: ideas code that can be copied freely, and sold Assume a random distribution of or redistributed without paying the cre- incentive structures in different people, ator or creators. a global network. Assume also that the Skeptics, of course, wonder if this costs of transmission, information shar- mode of production can be sustained. ing, and copying approach zero. Assume There seem to be inadequate incentives ½nally a modular creation process. With to ensure continued productivity and these assumptions, it just doesn’t matter innovation. E pur si muove, as Galileo is why unpaid code writers do what they reputed to have said in the face of Car- do; what matters is that a certain num- dinal Bellarmine’s certainties–“And yet ber of people will do what the unpaid it moves.” code writers do. One may do it for love Still, there is no consensus about why of the species, another in the hope of a the system works. Perhaps the open- better job, a third for the joy of solving source software movement is actually a puzzles, and so on. Each person also has contemporary form of potlatch, in his or her own “reserve price,” the point which one gains prestige by the extrava- at which he or she says “now I will turn gance of the resources one “wastes.” off Survivor and go and create some- Perhaps it is simply a smart way for a thing.” But on a global network, there young programmer to build a résumé are a lot of people, and with numbers that will eventually pay off in a conven- that big, and information-overhead that tional job. Or perhaps the movement is small, even relatively hard projects will driven by what Karl Marx considered an attract a suf½cient number of motivated innate aspect of our “species-being”: and skilled people to sustain the creative namely, the urge to create, which drives process. For the whole structure to work human beings to labor out of love rather without large-scale centralized coordi- than material need. nation, the creation process has to be Like Yochai Benkler and Eben Mog- modular, with “units” of different size len, I believe that such speculation is and complexity, each requiring slightly interesting but irrelevant.7 My own different expertise, all of which can be added together to make a grand whole. I 7 See Yochai Benkler, “Coase’s Penguin, or, Linux and the Nature of the Firm,” October 2001, unpublished draft,
Dædalus Spring 2002 21 James Boyle can work on the sendmail program, you recalcitrance. Maybe the open-source on intellectual on the search algorithms. More likely, model has solved the individual incen- property lots of people try to solve the sendmail tives problem, but that’s not the only and search algorithm problems, and problem. And how many types of inno- their products are judged by the commu- vation or cultural production are as nity and the best ones adopted. Under modular as software? these conditions–an ad hoc mode of My own guess is that this method of production that curiously combines production is far more common than we anarchism and entrepreneurialism, realize. “Even before the Internet,” as Kropotkin and Adam Smith–we will get some of my students have taken to say- innovation and productivity, without ing portentously, science, law, education, having to rely on the proprietary model. and musical genres all developed in ways What’s more (and this is a truly fasci- that are markedly similar to the model I nating twist), when the production pro- have described. “The marketplace of cess does need more centralized coordi- ideas,” the continuous roiling develop- nation, some governance that guides ment in thought and norm that our how the modular bits are most produc- political culture spawns, is itself an idea tively associated, it is at least theoretical- that owes much more to the distributed, ly possible that we can come up with the nonproprietary model than it does to the control system in exactly the same way; special case of commodi½ed innovation distributed production is potentially that we regulate through intellectual recursive. Governance processes, too, property law. It’s not that copyright and can be assembled through distributed patent haven’t helped power the rise of methods on a global network, by people modern civilization; it’s just that it with widely varying motivations, skills, would be wrong to see them as the only and reserve prices. engine of innovation. Indeed, the mot- Again, skeptics will have their doubts. toes of free software development have One organization theorist I know dis- their counterparts in the theory of misses the possibility of anarchic coordi- democracy and the open society. The nation as “governance by food ½ght.” open-source movement describes its Anyone who has ever been on an organi- advantage over closed and secretive sys- zational listserv, or been part of a global tems concisely: “given enough eyeballs, production process run by people who all bugs are shallow.” Karl Popper would are long on brains and short on social have cheered. skills, knows how accurate that descrip- Furthermore, I suspect that the in- tion is. E pur si muove. creasing migration of the sciences to- But, in the language of computer pro- ward data-rich, processing-rich models grammers, does the open-source soft- will make it likely that a greater amount ware movement “scale”? Can we gener- of innovation and discovery could fol- alize anything from this limited exam- low the distributed, nonproprietary ple? How many types of production, model of intellectual production. Bio- innovation, and research ½t into the informatics and computational biology, model I have just described? After all, the open-source genomics project at for lots of types of innovation and inven- www.ensembl.org, the possibility of dis- tion one needs hardware, capital invest- tributed data scrutiny by lay volunteers ment, large-scale real-world data collec- that nasa used on the Mars landing tion, stuff–in all its facticity and in½nite data–all of these offer intriguing
22 Dædalus Spring 2002 glances of a possible future. And ½nally, enclosure are currently locked in battle, Fencing off of course, the Internet is one big experi- each appealing to conflicting and some- ideas ment in distributed cultural production. times incommensurable claims about My own utopia would include modes ef½ciency, innovation, justice, and the of nonproprietary intellectual produc- limits of the market. tion flourishing alongside a scaled-down But should there be a second enclosure but still powerful intellectual property movement? Do we know that property regime. Of course, my utopia hinges on rights in this sphere will yield the same a hunch about the future. Still, there is surge of productive energy that they did some possibility (I might say hope) that when applied to arable land? we could have a world in which much I think the answer is a resounding No. more intellectual production is free– We are rushing to fence in ever-larger “free” meaning that it is not subject to stretches of the commons of the mind centralized control, and “free” meaning without convincing economic evidence that its products are available without that enclosure will help either produc- payment. Insofar as this is at least a possi- tivity or innovation–and with very ble future, then surely we should think good reason to believe it may actually twice before foreclosing it. hurt them.9 Yet foreclosing this possibility is pre- As I have argued elsewhere, this cisely what lawmakers and government process should bother people across the regulators in America are now doing. ideological spectrum, from civil libertar- The point about the dramatic recent ians to free marketeers. Researchers and expansion of intellectual property scientists should be particularly worried rights–in database protection bills and by what is happening. Up to now, the directives that extend intellectual prop- American system of science, for all its erty rights to the layer of facts, in the flaws, has worked astoundingly well; efflorescence of software patents, in the changing some of its fundamental prem- validation of shrink-wrap licenses that ises, such as by moving property rights bind third parties, in the Digital Millen- into the data layer, is not something to nium Copyright Act’s anticircumven- be done lightly. tion provisions–is not merely that they The dangers are particularly acute at hamper the nonproprietary mode of the moment for three reasons. First, intellectual production unfairly and under the conditions that currently without justi½cation. The point is rather obtain in our digitized commons of the that they run the risk of ruling it out mind, the creation of new intellectual altogether.8 property rights tends, in a vicious circle, to create still further demands for new We have come full circle. As I have intellectual property rights. The argu- shown, we are in many ways in the ment is a little too complicated to lay out midst of a second enclosure movement. The opponents and proponents of impediments now being erected to distrib- uted, nonproprietary solutions. See also Boyle, “Cruel, Mean, or Lavish?” 8 This point has been ably made by, inter alia, Pamela Samuelson, Jessica Litman, Jerry 9 Some of the legislation involved is also con- Reichman, Larry Lessig, and Yochai Benkler. stitutionally dubious, under the First Amend- Each has a slightly different focus and emphasis ment and Art 1 sec. 8 cl. 8 of the Constitution, on the problem, but each has pointed out the but that is a point for another paper.
Dædalus Spring 2002 23 James Boyle here.10 But in essence the position is nature–start to seem like vices rather on intellectual this: once a new intellectual property than virtues. The process of trying to property right has been created over some infor- make the Net safe for price discrimina- mational good, the only way to ensure tion has already begun. Yet as Lawrence ef½cient allocation of that good is to give Lessig has argued, this is a fundamental the rights holder the ability to charge political choice that ought to be made every user the exact maximum each con- deliberately and publicly, not as a side sumer is willing to pay, so that the mar- effect of an economically dubious digital ket can be perfectly segregated by price. enclosure movement. Because of some In order to protect their ability to set threats, such as terrorism, we might prices for digital intellectual property choose to live in a pervasively monitored goods, whose marginal cost to produce electronic environment in which identi- and distribute in fact approaches zero, ty and geography, and thus regulability, the rights holders will inevitably argue have been reintroduced. (In my own that they need even more changes of the view, the price is not worth paying.) But rules in their favor: relaxed privacy stan- to do so on the basis of some bad micro- dards, so they can know more about economic arguments about the needs of consumers’ price points; enforceable the entertainment industry and in the shrink-wrap or click-wrap contracts, so absence of good empirical evidence, and that consumers can be held to the term to foreclose some of the most interesting of a particular license, no matter how new productive possibilities in the restrictive; and changes in antitrust process–well, that would be really sad. rules, to allow for a variety of practices Third, the arguments in favor of the that are currently illegal, such as resale new enclosure movement depend heavi- price maintenance and various forms of ly on the intellectually complacent, ana- “tying.” Rights holders will also claim lytically unsound assumptions of “neo- that they need technical changes with liberal orthodoxy,” the “Washington legal backing: for example, the creation consensus.” Convinced that property is of personalized digital objects surround- good, and that creating more property ed by state-sanctioned digital fences, rights is better, neoliberals are primed to objects that are tied to particular users hand out patents on gene sequences and and particular computers, so that read- stem cell lines and copyrights on compi- ing my e-book on your machine is either lations of facts. It would be ironic, to say technically impossible, a crime, or a the least, to let such neoliberal convic- tort–or possibly all three. My conclu- tions determine the fate of the informa- sion: extending ever-stronger intellectu- tion commons, the one area where the al property rights is a very slippery slope. pros and cons of a property regime need Second, the broader the scope of intel- to be most delicately balanced, and also lectual property rights, the more the an area where the possible consequences characteristics of the Internet that have for the public good ought to be vigorous- made it so attractive to civil libertari- ly and openly debated. ans–its distributed, anonymous charac- What is to be done, then? I cannot lay ter, its resistance to control or ½ltering out a full answer here, but I would sug- by public or private entities, its global gest two broad strategies. First, we ought to insist on considerably better empiri- 10 The full version is given in Boyle, “Cruel, cal and economic evidence before sign- Mean, or Lavish?” ing on to the proposals of the second
24 Dædalus Spring 2002 enclosure movement. There are a few plex interrelationship among natural Fencing off serious comparative and historical stud- systems. In both of these conceptual sys- ideas ies of the economics of innovation, but tems, the environment actually disap- we need a lot more. Indeed, there should peared; there was no place for it in the be an annual audit of our intellectual analysis. Small surprise, then, that law- property system, perhaps by the General makers were not able to protect it prop- Accounting Of½ce. What are the costs– erly. static and dynamic–and the bene½ts of We should press a similar argu- our current intellectual property re- ment–as I have done here–in the case gime? After all, this is one of the largest of the public domain.11 We should industry subsidies given by government exploit the power of a concept like the (through its granting of patents and public domain both to clarify and to copyrights); it deserves the same search- reshape perceptions of self-interest. The ing scrutiny that we apply to the recipi- idea that there is a public domain–a ents of other state subsidies. I am a ½rm “commons of the mind”–can help a believer in intellectual property rights; coalition to be built around a reframed properly balanced and judiciously conception of common interest. In the applied, such rights promise us a won- narrowest sense, that common interest derfully decentralized system for the might be the realization, spurred by promotion of innovation. But this is a greater attention to intellectual interre- rational belief in particular rules based lationships, that the freest possible cir- on empirical evidence, not an unques- culation of ideas and facts is important tioning faith that any increase in intel- to anyone whose well-being signi½cant- lectual property rights is automatically ly depends on intellectual innovation good. and productivity–that is to say, every Second, we need to make clear the citizen of the world. current dangers to the public domain, in The poem with which I began this the same way that environmental essay contained some advice: And geese activists in the 1950s and 1960s made will still a common lack / Till they go and visible not only particular environmen- steal it back. tal threats but the very existence of “the I can’t match the terseness or the environment” itself. The environmental rhyme. But if we blithely assume that movement gained much of its political the second enclosure movement will power by pointing out that there were have the same benign effects as the ½rst, structural reasons why lawmakers were we may look like very silly geese indeed. likely to make bad environmental deci- sions: a legal system based on a particu- 11 An expanded version of this argument can lar notion of what “private property” be found in “A Politics of Intellectual Property: entailed, and a technological tendency Environmentalism for the Net,” Duke Law to treat the world as a simple, linear set Journal 47 (1) (1997): 87,
Dædalus Spring 2002 25 Carla Hesse
The rise of intellectual property, 700 b.c.–a.d. 2000: an idea in the balance
The concept of intellectual property– focus of this essay–are at the core of the the idea that an idea can be owned–is a modern concept of intellectual property. child of the European Enlightenment. It It was here in the eighteenth century was only when people began to believe that the language of “ideas” and “prop- that knowledge came from the human erty” ½rst came into contact with one mind working upon the senses–rather another, and ½rst forged a legal bond. than through divine revelation, assisted And it was here, too, that the very idea of by the study of ancient texts–that it a property right in ideas was most became possible to imagine humans as sharply contested–at the outset, and to creators, and hence owners, of new ideas the present day. rather than as mere transmitters of eter- nal verities. “From the Heliconian Muses let us Besides being distinctively modern, begin to sing. . . .” Thus begins Hesiod’s intellectual property is a dense concept, Theogony, and many other texts of the woven together from at least three com- ancient Greek world. The poet spoke the plex strands of jurisprudence–copy- words of the gods, not his own cre- right, patent, and trademark–each with ations. Knowledge, and the ability to its own sources in premodern custom make it manifest to man, was assumed and law, and each with its own trajectory to be a gift, given by the muses to the into our own era. poet. Alternatively, Plato thought that all Still, copyright, and the complementa- ideas were held from birth in the mind, ry concepts of authors’ rights and liter- where they had transmigrated from ear- ary property in continental law–the lier souls. Ancient Greeks did not think of knowledge as something that could be owned or sold. A scribe could be paid Carla Hesse is a professor of history at the Univer- fees for his labor, an author awarded sity of California, Berkeley. Her current research prizes for his achievement, but the gift of interests include legal and cultural aspects of polit- the gods was freely given. And thus the ical violence, in particular the French Terror of libraries of the ancient academies were 1793–1794. She is the author of “Publishing and not sold, but were instead transmitted as Cultural Politics in Revolutionary Paris” (1991) gifts to the teacher’s most worthy suc- and “The Other Enlightenment: How French cessor. Socrates held the Sophists in con- Women Became Modern” (2001). tempt for charging fees for their learn- ing.
26 Dædalus Spring 2002 A tour of the other great civilizations to have come from nature, and no The rise of intellectual of the premodern world–Chinese, human being could make a claim upon property, Islamic, Jewish, and Christian–reveals a them that would exclude their usage by 700 b.c.– striking absence of any notion of human others. Only the paltry vessel–the paper a.d. 2000 ownership of ideas or their expressions. and ink of a manuscript or a printed In the Lun-Yii, or Analects, compiled in book that bore the ideas and expres- China in the ½fth century b.c., the sions–could be bought or sold.2 philosopher Confucius is recorded as Throughout the Islamic lands, too, saying, “I transmit rather than create; I there was no concept of intellectual believe in and love the Ancients.” The property for many hundreds of years. All measure of the greatness of a Chinese knowledge was thought to come from scholar was not to be found in innova- God. The Koran was the single great tion, but rather in his ability to render or scripture from which all other knowl- interpret the wisdom of the ancients, edge was derived. A text that embodied and ultimately God, more fully and the word of Allah, it belonged to no one. faithfully than his fellows. Wisdom There were guardians of its true mean- came from the past, and the task of the ing, to be sure–the great Imams who learned was to unearth, preserve, and formed schools at the sites of the most transmit it. Confucian thought despised important temples. But the principle commerce and thus also writing for means of transmitting Koranic knowl- profit; authors practiced their craft for edge was oral recitation–from teacher the moral improvement of themselves to student, in an unbroken lineage from and others. Reputation, and especially Muhammad himself to his disciples, and the esteem of future generations, was its from these chosen few forward through own reward, even if it might, incidental- the generations. The word “Koran” itself ly, bestow the worldly gifts of patrons means “recitation,” and oral transmis- upon its bearer.1 sion of the living word was always to be This is not to suggest that there was no preferred over a written transcription. commerce in books in China. In the land The book was merely an instrument, a that invented movable type, a book trade lowly tool, to facilitate faithful memo- flourished as early as the eleventh centu- rization of the word, and manuscripts ry. Still, Chinese authors had no proper- were continuously checked and re- ty right to their published words. The checked against oral memory to ensure contents of books could not be owned. their accuracy and the authority of their Not even the particular expressions an lineage. The Islamic belief that oral author might employ could be claimed recitation, rather than written transcrip- as his. Chinese characters were thought tion, best preserved the word of God and kept it pure across the generations meant that the technology of printing 1 William P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law and Chinese was very slow to penetrate into Islamic Civilization (Stanford, Calif.: Stanford Univer- lands, and it was only widely adopted sity Press, 1995), esp. 25–29. I would like to throughout the Middle East with the thank the National Humanities Center in advent of the mass newspaper press in Research Triangle Park, N.C., for its support of the research and writing of this essay. I would also like to thank Thomas Laqueur and Robert 2 Ibid. Post for their comments and criticism.
Dædalus Spring 2002 27 Carla Hesse the nineteenth century.3 Unde Vendi Non Potest” (Knowledge is on a gift from God, consequently it cannot intellectual To be sure, a certain notion of legal property “authorship” did emerge from Islamic be sold). scribal practices. But a concept of intel- Selling something that belonged to lectual property did not. Shar2‘a law God constituted the sin of simony. Uni- against “imposture” or “fraud” was used versity professors, lawyers, judges, and to prevent the unauthorized appropria- medical doctors were thus admonished tion of the reputation or authority of a not to charge fees for their services, al- great teacher through false attribution of though they might receive gifts in grati- 6 written texts.4 But the teacher did not tude for the wisdom they imparted. own the ideas expressed within his Indeed, the language of gift-giving per- books. A thief who stole a book was thus meated all forms of knowledge exchange not subject to the punishment for in the premodern period, and nowhere theft–the amputation of his hand. more so than in the dedicatory prefaces Islamic law held that he had not intend- to books through which authors sought ed to steal the book as paper and ink, but patronage in recompense for the sym- the ideas in the book–and unlike the bolic offering of their works. Thus, even paper and ink, these ideas were not tan- as books were increasingly bought and gible property.5 sold after the advent of print in Europe The Judeo-Christian tradition elabo- in the ½fteenth century, and even as rated a similar view of knowledge. writers began to sell their manuscripts to Moses received the law from Yahweh printers for a pro½t, there remained a and freely transmitted it to the people dimension of the book, its spiritual lega- chosen to hear it. And the New Testa- cy, that lay beyond the grasp of market 7 ment sancti½ed the idea of knowledge as relations. The author might lay claim to a gift from God in the passage of the the manuscript he created, and the print- Book of Matthew in which Jesus exhorts er to the book he printed, but neither his disciples, “Freely ye have received, could claim to possess the contents that freely give” (10:8). Medieval theologians lay within it. The Renaissance elevated interpolated this passage into the canon the poet, the inventor, and the artist to law doctrine “Scientia Donum Dei Est, unprecedented social heights, but their “genius” was still understood to be 3 Johannes Pedersen, The Arabic Book, trans. divinely inspired rather than a mere Geoffrey French (Princeton, N.J.: Princeton product of their mental skills or worldly University Press, 1984; original publication: labors. Copenhagen, 1946); William A. Graham, In the sixteenth century, Martin “Traditionalism in Islam: An Essay,” Journal of Luther could thus preach con½dently in Interdisciplinary History XXIII (3) (Winter 1993): his Warning to Printers, “Freely have I 495–522; Francis Robinson, “Technology and Religious Change: Islam and the Impact of received, freely I have given, and I want Print,” Modern Asian Studies 27 (1) (1993): 229–251. 6 Gaines Post et al., “The Medieval Heritage of a Humanistic Ideal: ‘Scientia Donum Dei Est, 4 Sayed Hassan Amin, Law of Intellectual Proper- Unde Vendi Non Potest,’” Traditio 11 (1955): ty in the Middle East (Glasgow: Royston, 1991), 3. 195–234.
5 The Hedaya 92 (1795), cited in Steven D. 7 Natalie Z. Davis, “Beyond the Market: Books Jamar, “The Protection of Intellectual Property as Gifts in Sixteenth Century France,” under Islamic Law,” Capital University Law Transactions of the Royal Historical Society, ser. 5, Review 21 (1992): 1085. 33 (1983): 69–88.
28 Dædalus Spring 2002 nothing in return.” Well into the eigh- modern world did not, of course, mean The rise of intellectual teenth century the idea of the writer as that ideas flowed freely within premod- property, God’s handmaiden held sway. Alexander ern regimes. It fell to God’s agents upon 700 b.c.– Pope, in 1711, still conceived of the poet the earth to determine how much of the a.d. 2000 as a reproducer of traditional truths knowledge putatively transmitted from rather than an inventor of new ones, and God was actually divine in origin, as Goethe could write fairly of the German well as how widely and by whom such poets of the early eighteenth century knowledge should be circulated within that “the production of poetical works their kingdoms, empires, and cities. was looked upon as something sacred. It Rulers forged alliances with religious was considered almost simony to accept authorities to control the production or to bargain for payment of them.” and circulation of ideas and informa- This theologically informed moral tion–both spiritual and technical– revulsion to the idea of an individual within their realms. Throughout the pro½t motive in the creation and trans- world, the early modern period wit- mission of ideas continued to circulate nessed the emergence of elaborate sys- in the United States well into the nine- tems of prepublication censorship, teenth century. Francis Wayland, the state-licensed monopolies to control the president of Brown University in the burgeoning printing and publishing 1830s, wrote in his college textbook The trades, and the use of royal letters of Elements of Moral Science that “genius patent or “privileges” to give exclusive was given not for the bene½t of the pos- monopolies for the printing and publi- sessor, but for the bene½t of others.”8 cation of authorized texts. Technical And an intellectual of no less stature inventions came to be regulated by a than George Bancroft added a Hegelian similar system of exclusive state licens- twist to the Christian tradition, writing ing. in 1855 that: In China, as early as the Tang dynasty (a.d. 618–907), the legal code prohibit- Every form to which the hands of the ed the transcription and distribution of artist have ever given birth, spring ½rst a wide range of literature in order to into being as a conception of his mind, protect the emperor’s prerogatives and from a natural faculty, which belongs not interests. The ½rst known ordinance to the artist exclusively, but to man. . . . regulating publication was that of the Mind becomes universal property; the Emperor Wen-tsing, in 835, forbidding poem that is published in England, ½nds the private publication of almanacs. An its response on the shores of Lake Erie extensive regulatory apparatus was cre- and the banks of the Mississippi.9 ated around the industry of printing under the Sung dynasty (960–1179), and The virtually universal proscription of of½cial government printing houses private ownership of ideas in the pre- were established in the major cities. Exclusive state privileges were imple- 8 Francis Wayland, The Elements of Moral mented for categories of sensitive litera- Science (London: The Religious Tract Society, ture, from astrological charts, prognosti- n.d [1835]), 275. cations, and almanacs to of½cial pro- mulgations, dynastic histories, and civil- 9 George Bancroft, Literary and Historical Mis- cellanies (New York: Harper & Brothers, 1855), service examination literature. Private 412, 427. printing houses could register a particu-
Dædalus Spring 2002 29 Carla Hesse lar work with Imperial of½cials and of “King’s Printer,” which was given to on intellectual receive an exclusive privilege to print one William Facques in 1504. This posi- property and sell it. tion afforded him the exclusive right to But privileges were not a form of prop- print royal proclamations, statutes, and erty right in the modern sense. They other of½cial documents. By 1557 the were a grace, extended by the pleasure of English crown reorganized the guild of the authorities, and they were revocable printers and publishers known as the at any time. By the eighteenth century a “Stationers’ Company” and gave them a comprehensive system of prepublication virtual monopoly over printing and censorship and licensing, even of private publishing, both in London and in the writing, was in place throughout kingdom as a whole. In 1559, as part of Imperial China.10 her attempt to resolve the religious con- European monarchies, empires, and troversies that wracked the realm, city-states created similar legal and insti- Elizabeth I issued an injunction against tutional structures in response to the publication of any text unless it had been introduction of the new technology of licensed by censors appointed by the printing in the 1450s. Less than a hun- crown. The Stationers’ Company kept a dred years later, the Reformation rent registry of licensed books and the crown western Christendom. With the spread could, in principle, extend or revoke a of ideological division, regulation of the license at will and limit it for whatever printed word intensi½ed rapidly. Rulers term it deemed appropriate. Rights to granted commercial monopolies, or pro½t from a book derived not from “privileges,” in exchange for submission property in ideas, but from a “privilege” to state censorship and control. The ear- extended by royal “grace” alone.12 liest European initiative occurred in the These licenses were “copied” into the Republic of Venice in 1469, where registry book of the guild and soon came Johann Speyer was granted an exclusive to be treated by members of the guild as monopoly on printing in Venetian terri- exclusive rights to print a particular tories for a period of ½ve years.11 The “copy.” Though created by royal prerog- practice of granting exclusive privileges ative, these “copy” rights were bought, to print in a particular city, to print a sold, and traded amongst guild mem- particular text, or to print a particular bers, as though they were a form of per- category of texts (schoolbooks, laws, petual property. By the 1570s, four Latin texts, etc.) spread rapidly from prominent members of the Stationers’ Venice throughout the Italian states, and Company came to have a monopoly con- from there to France and England. trol, through “letters patents” that they England presents an exemplary case. claimed as their perpetual property The ½rst royal grant of a privilege to the rights, over the most lucrative books in book trade was the creation of the title print: Christopher Barker, the Queen’s Printer, controlled the Bible, the New Testament, the Book of Common Prayer, 10 Chan Hok-Lam, Control of Publishing in China: Past and Present (Canberra: Australian and all statutes, proclamations, and National University, 1983), 2–24. other of½cial documents; William Serres 11 Leonardas Vytautas Gerulaitis, Printing and Publishing in Fifteenth-Century Venice (Chicago: 12 John Feather, Publishing, Piracy and Politics: American Library Association; London: A Historical Study of Copyright in Britain Mansell, 1976). (London: Mansell, 1994).
30 Dædalus Spring 2002 had a monopoly on private prayer Throughout the early modern world The rise of intellectual books, primers, and schoolbooks; Rich- the development of commercial print- property, ard Tottel had a monopoly on common ing and publishing thus ½rst occurred 700 b.c.– law texts; and John Day laid claim to through a system of state-licensed mo- a.d. 2000 alphabet books, the Catechism, and the nopolies, sanctioned by religious ideolo- Psalms in meter. gies, that made no mention at all of in- A similar process of consolidation of tellectual property rights. The prevailing great publishing empires, founded upon theories of knowledge and of political monopolistic claims rooted in royal pri- legitimacy made such rights inconceiv- vileges, occurred throughout Christian able. Europe. By the middle of the seven- teenth century, the Paris Book Publish- In the 1700s, cultural life in Europe ers and Printers Guild, like its brethren underwent a dramatic transformation. A in London, had used its strategic prox- shift from intensive to extensive reading imity to the royal court to achieve a and the rise of a middle-class reading monopoly on the most valued ancient public led to an explosion of print com- and religious texts as well as the most merce in the eighteenth century. In lucrative contemporary publications.13 England, it is estimated that annual Each of the more than three hundred book production increased fourfold over German principalities and cities devel- the course of the eighteenth century. oped its own particular mechanisms to France, too, saw a marked increase in censor books, distribute privileges, and the literacy rate and a dramatic increase regulate guilds. in the demand for modern secular litera- An author might sell a manuscript to a ture. licensed publisher for a one-time fee, Everywhere, observers noted the but the real material rewards for the change. Whereas in 1747 Johann Georg composition of a book came from the Sulzer lamented that in Berlin “the gen- anticipated royal or aristocratic patron- eral public does little reading,” a half- age that might redound, indirectly, to century later Immanuel Kant recorded a the writer from its publication. Authors literary world transformed: “This inces- could not publish their own books, and sant reading has become an almost unless they obtained a privilege in their indispensable and general requisite of own name, they were denied any pro½ts life.” Kant’s observations were con- from the sale of their books. These went ½rmed by others: “People are reading to the publishers alone. State-licensed even in places where, twenty years ago, monopolies on texts, on technical inven- no one ever thought about books; not tions, and on the means of reproducing only the scholar, no, the townsman and them successfully wedded the commer- craftsman too exercises his mind with cial interests of publishers, printers, and subjects for contemplation.” Increasing other technical entrepreneurs to the ide- literacy and the emergence of a large ological needs of absolutist states to middle-class readership throughout control the knowledge that circulated in Europe in the ½rst half of the eighteenth their realms. century put unprecedented strains upon a system of publication that had been 13 Henri-Jean Martin, Livre, pouvoirs et société à predicated on the notion that there was Paris au 17ème siècle (1598–1701) (Geneva: Droz, a ½xed amount of divine or ancient 1969).
Dædalus Spring 2002 31 Carla Hesse knowledge to be known, transmitted, creations were their own property, as on 14 intellectual and interpreted. susceptible to legal protection and as property These developments put enormous inheritable or saleable as any other form pressure on traditional notions of of property. Daniel Defoe wrote in 1710, authorship. The increased demand for “A Book is the Author’s Property, ’tis the printed matter, and especially for mod- Child of his Inventions, the Brat of his ern secular literature (in particular, nov- Brain: if he sells his Property, it then els, theatrical works, and self-help man- becomes the Right of the Purchaser.” uals of various sorts), tempted an Authors thus began to assert that their increasing number of young men (and works were their own property, trans- women) to aspire to become writers. missible by contract to others if the And they were writers of a new sort– authors desired, but that authors should oriented more toward the commercial no longer be constrained to sell their potential of their contemporary reader- manuscripts in order to see them pub- ship than toward eternal glory. For the lished. ½rst time, in the eighteenth century, The rise in public demand for printed writers like Daniel Defoe in England, matter also led to a dramatic expansion Denis Diderot in France, and Gotthold in the practice of literary piracy. Sensing Lessing in Germany began to try to live unsatis½ed market demand and acutely from the pro½ts of their pens rather than aware of the arti½cial inflation in the from elite patronage. And, not surpris- price of some books due to publishers’ ingly, they began to make claims for bet- perpetual privileges, less-scrupulous ter remuneration for their products. printers and booksellers throughout Older notions that a ½xed “honorarium” Europe paid diminishing heed to the or fee was an appropriate reward for the claims to exclusive perpetual privileges composition of a manuscript gave way to on the best-selling and most lucrative bolder assertions that the author works. Cheap reprints, produced most deserved a share in the pro½ts earned frequently across national frontiers or in from his creative labor. smaller provincial cities, began to flood Rather than selling a manuscript to a urban markets. Publishers of pirate edi- publisher, authors increasingly sought tions successfully represented them- simply to sell the “rights” to a single edi- selves as champions of the “public inter- tion. With greater frequency, secular est,” against the monopolistic members authors began to claim that they were of the book guilds. Why, they argued, the creators of their own works rather should any particular publisher have an than the mere transmitters of God’s exclusive claim on a work whose authors eternal truths. As they came to view or heirs were no longer living–indeed, themselves as the originators of their on many works composed before the work, they also began to claim that their invention of printing? Did not the greater good of making enlightening 14 W. H. Buford, Germany in the Eighteenth works widely available at a low cost Century: The Social Background of the Literary eclipse the sel½sh interests of individual Revival (Cambridge: Cambridge University publishers? Press, 1965); Albert Ward, Book Production, By the middle of the eighteenth centu- Fiction and the German Reading Public, 1740–1800 (Oxford: Oxford University Press, 1974); Roger ry, the traditional system of publication Chartier, The Order of Books (Stanford: Stanford was everywhere in shambles. First in University Press, 1994). England, and then in France and Ger-
32 Dædalus Spring 2002 many as well, calls for reform of the reg- ½rst glance seemed merely to be ques- The rise of intellectual ulation of the book trade were coming tions of commercial policy. property, from all parties involved. Readers want- One influential view–that authors 700 b.c.– ed cheaper books. Government legisla- have a natural property right in their a.d. 2000 tors sought to increase commerce and to ideas–was articulated ½rst in England encourage a more educated population and associated with two key texts: John within their realms. Foreign and provin- Locke’s Second Treatise (1690) and cial publishers–most notably in Scot- Edward Young’s Conjectures on Original land, Switzerland, and secondary French Composition (1759). cities like Lyon–clamored against the In his Treatise, Locke famously wrote perpetual monopolies of the London that “every Man has a Property in his and Paris Book Guilds on the most luc- own Person. This no Body has any right rative books. Authors wanted their to but himself. The Labour of his Body, property rights in their compositions and the Work of his Hands, we may say, recognized as absolute and perpetual. are properly his.” Three generations And even the privileged guild publish- later, the poet Edward Young, writing ers, especially in Hamburg, Leipzig, with the assistance of the novelist Sam- Frankfurt am Main, London, and Paris, uel Richardson, asserted that the author hoped to see their traditional privileges contributed more than simply his labor recognized as perpetual property rights to a book–he imprinted its contents that could be defended against pirates in with his original personality. According the courts. to Young, the labor of an author was Satisfying and sorting out these con- thus of a higher order than the labor of flicting claims provoked a host of press- an inventor, never mind the labor of a ing new questions: Were ideas in fact a farmer, for the author not only worked gift from God, as traditional authorities upon nature, but produced something had claimed, or were they the property from himself, which bore the indelible of those who made them manifest, as stamp of a unique personality. While authors now asserted? Was a “privilege” limits might be imposed upon patents a “grace,” or was it rather the legal rati- for mechanical inventions, products of ½cation of an anterior, natural right to the mind–bearing the personhood of property? Upon what basis could the their author–ought to belong perpetu- governments of nations or cities restrict ally to their creator. Intellectual proper- or con½rm traditional privileges? Could ty, an invention of the eighteenth centu- a secular foundation be articulated for ry, thus burst into the world claiming to the regulation of the publication and cir- be real property in its purest form. culation of ideas? Young’s reflections, like those of John Locke before him, constituted a dramat- The reform of the publishing industry ic secularization of the theory of knowl- in Europe thus entailed a rethinking of edge. If all knowledge was derived from the basis and purpose of knowledge. A the senses working upon nature, as variety of European thinkers entered Locke had argued in the Essay Concerning into a momentous debate about the ori- Human Understanding (1689), there was gins and nature of ideas. As a result, a no role left for divine revelation. In the series of philosophical (or, more secular epistemology of Locke, inspira- speci½cally, epistemological) problems tion is internalized and rede½ned as cog- were shown to lie at the heart of what at nition. Young in turn applied Locke’s
Dædalus Spring 2002 33 Carla Hesse epistemology to argue that cognition his own thoughts . . . the most precious on part of himself, that will never perish, that intellectual emanates from the workings of a unique property mind. The individual personality sup- will immortalize him? What comparison planted God as the divine font of knowl- could there be between a man, the very edge. substance of a man, his soul, and a ½eld, a The new British accounts of knowl- tree, a vine, that nature has offered in the edge began circulating almost immedi- beginning equally to all, and which the ately on the Continent. Young’s Conjec- individual has only appropriated though tures on Original Composition was rapidly cultivating it?16 translated into German and went Like Young, Diderot argued that prod- through two editions there in the two ucts of the mind are more uniquely the years after it ½rst appeared in English. property of their creator than land Meanwhile, in France, both Locke and acquired through its cultivation. Literary Young were widely influential. In 1726, property should, therefore, be even less for example, the French jurist D’Heri- susceptible to social regulation than court seized upon Locke’s critical pas- land. sage to argue in court on behalf of per- It was Gotthold Lessing, the greatest petual book privileges for authors, as- writer of the German Enlightenment, serting that products of the mind are who most forcefully developed the “the fruits of one’s own labor, which one notion of the author’s unique personali- should have the freedom to dispose of at ty as a source of property rights in ideas. one’s will” and forever. One could own In a 1772 essay, Live and Let Live, Lessing one’s ideas just as one owned land that proposed a reorganization of the Ger- one had cleared with one’s own labor. man book trade that attacked the foun- D’Hericourt concluded that a royal book dations of the old system. He challenged privilege was not merely a grace accord- directly the traditional ban on pro½ts ed by the king, to be granted or revoked received from writing: at his will, but rather a legal con½rma- tion of an anterior natural property What? The writer is to be blamed for try- right, secured by the author’s labor.15 ing to make the offspring of his imagina- The author could sell or retain those tion as pro½table as he can? Just because rights as he or she wished. Once sold, he works with his noblest faculties he isn’t they belonged to the publisher in perpe- supposed to enjoy the satisfaction that the tuity. roughest handyman is able to procure?. . . The same argument was taken up Freely hast thou received, freely thou must again by the encyclopedist Denis give! Thus thought the noble Luther. . . . Diderot in 1763, after he was commis- Luther, I answer, is an exception in many sioned by the Paris Book Guild to write a things. Letter on the Book Trade. In Diderot’s From Lessing forward, German writers words, we can hear the resonance of clamored insistently for recognition of both Locke and Young: their claims upon their writings as a What form of wealth could belong to a form of unique, perpetual, and invio- man, if not the work of the mind . . . if not lable property.
15 Raymond Birn, “The Pro½t in Ideas: Privilèges en librairie in Eighteenth-Century 16 Denis Diderot, Oeuvres Complètes, 15 Vols. France,” Eighteenth-Century Studies 4 (2) (1971): (Paris: 1970), 5:331 (my translation). 131–168.
34 Dædalus Spring 2002 A generation later, Johann Gottlieb sions of ideas, rather than in the ideas The rise of 17 intellectual Fichte, a philosopher and disciple of themselves. property, Kant, probed the complexities of the 700 b.c.– problem even more deeply. Fichte posed Not everyone shared the enthusiasm a.d. 2000 a dif½cult question: if creations of the of Fichte and Diderot and Edward mind were indeed “property,” what Young for the nascent concept of intel- exactly was immaterial property? lectual property. Some viewed the wide- Clearly it did not simply consist of a spread movement toward securing an physical manuscript, since the author or author’s property rights as nothing more the publisher could no longer claim such than a new metaphysics and a thinly an object to be unique once it had been veiled campaign to protect the monopo- reproduced through printing. Literary lies of book publishers. In the 1770s, a property seemed to lack the singular zealous German mercantilist went so far physical form that characterized other as to defend the piracy practiced by forms of real property. But this was not some German book publishers: the only dif½culty with the idea of a property in ideas. After all, a great many The book is not an ideal object. . . . It is a people seemed able to share the same fabrication made of paper upon which ideas, and it seemed intuitively just that thought symbols are printed. It does not as many people as possible should be contain thoughts; these must arise in the permitted to express freely the same mind of the comprehending reader. It is a ideas independent of one another. commodity produced for hard cash. Every Fichte’s solution to his puzzlement government has a duty to restrict, where proved widely influential. For an idea to possible, the outflow of its wealth, hence be regarded as a piece of real property, to encourage domestic reproduction of Fichte argued, it had to be assigned foreign art objects. some distinguishing characteristic that In 1776, the French mathematician and allowed one person, and no other, to philosopher Condorcet expressed even claim it as his own. That quality, he sug- deeper reservations, for philosophical gested in 1791 in his essay Proof of the Ille- rather than commercial reasons. Writ- gality of Reprinting: A Rationale and a Par- ing in direct response to Diderot’s Letter able, lay not in the ideas per se, but ra- on the Book Trade, Condorcet disputed ther in the unique “form” in which an his Lockean line of argument: “There author chose to express these ideas. can be no relationship between property Once published, the ideas in a book in ideas and [property] in a ½eld, which belonged to all–but the singular form of can serve only one man. [Literary prop- their expression remained the sole prop- erty] is not a property derived from the erty of the author. Even ideas that had natural order and defended by social been “in the air” could become a piece force; it is a property founded in society of property through the unique way in itself. It is not a true right; it is a privi- which an author expressed them. lege.” Fichte’s distinctions–between the Ideas, Condorcet asserted, are not the material and the immaterial book, and creation of a single mind. Nor are they a between the content and form of ideas– were to be critical in establishing a new 17 Martha Woodmansee, “The Genius and the theory of copyright based on the natural Copyright: Economic and Legal Conditions of the Emergence of the ‘Author,’” Eighteenth- right to property in the unique expres- Century Studies 17 (1984): 425–448.
Dædalus Spring 2002 35 Carla Hesse gift from God to be regulated by royal ral right but rather on the basis of the on intellectual authority. Ideas inhere in nature and are social utility of a property-based regime. property equally and simultaneously accessible to Condorcet thus erected a second, all. Ideas are intrinsically social: they are alternative pillar for the modern notion not produced by individuals alone; they of intellectual property: social utilitari- are the fruit of a collective process of anism. experience. Moreover, Condorcet could see no The tension within Enlightenment social value in granting individual claims epistemology left those policymakers upon ideas. Since true knowledge was concerned with the book trade on the objective, particular claims on ideas horns of a philosophical dilemma. Did could consecrate nothing more than knowledge inhere in the world–or in mere style, what Fichte had called the mind? To what extent were ideas “form.” Condorcet, as a man of science discovered–and to what extent were rather than literature, had little use for they invented? style. Style merely distorted nature’s Condorcet argued that knowledge was truths, and to encourage the individua- objective and thus fundamentally social tion of ideas was simply to encourage in character, belonging to all. Diderot, pleasant ½ctions and personal gain along with Young, Lessing, and Fichte, rather than the pursuit of knowledge viewed ideas as subjective, originating in and the public good: “It is uniquely for the individual mind and thus constitut- expressions, for phrases, that privileges ing the most inviolable form of private exist. It is not for the substance of property. things. . . . Privileges of this sort, like all Two strains of legal interpretation others, are inconveniences that diminish developed from these competing philo- activity by concentrating it in a small sophical doctrines. Those legal thinkers number of hands. . . . They are neither who sided with the objectivist position necessary nor useful, and . . . they are of Condorcet elaborated the utilitarian unjust.” doctrine that there was no natural prop- While Diderot, Lessing, and Fichte erty in ideas, and that granting exclusive celebrated romantic originality, Con- legal rights to individuals for unique dorcet sought to ground public literary forms of their expression could only be culture in scienti½c rationalism. The justi½ed because such an arrangement model of publication based upon was the best legal mechanism for authors’ property rights could, accord- encouraging the production and trans- ing to Condorcet, be replaced with the mission of new ideas, a manifest public model of periodical subscriptions, like good. Conversely, those who sided with the Journal des Savantes. People could sub- Locke, Young, Diderot, Fichte, and the scribe to useful publications and the subjectivist camp argued that there was authors could be remunerated as a natural right to perpetual property in salaried employees or freelance writers ideas and that legal recognition of that for a nonpro½t organization. More right was simply the con½rmation in important than his speci½c policy sug- statute of a universal natural right. The gestion was Condorcet’s claim that if utilitarian position thus understood the ideas, as social creations, were to be rec- public interest as the highest aim of the ognized as a form of property, it must law, while natural-rights proponents not be on the basis of an individual natu- argued that the sanctity of the individual
36 Dædalus Spring 2002 creator should be the guiding principle the Encouragement of Learning and for The rise of intellectual of any legislator. Securing the Property of Copies of property, Over the course of the eighteenth cen- Books to the Rightful Owners There- 700 b.c.– tury, every European country witnessed of”–represented an uneasy compromise a.d. 2000 a series of legal battles over which of between the position of the Stationers’ these principles would prevail. Vested Company and the advocates of authors’ interests on both sides of the debate vied natural rights on one side and the posi- to capture the legislative advantage. The tion of the pirate publishers and advo- English were the ½rst to take up the cates of “the public interest” on the question after the lapsing of the Licens- other. ing Act in 1695, which had regulated the Needless to say, neither side was book trade and censorship. Intending to entirely satis½ed with this compromise. end prepublication censorship by sup- The contradictory philosophical pressing the obligation to submit to assumptions it codi½ed left plenty of prior licensing before publication, room for subsequent court challenges. A Parliament inadvertently also called the series of cases that pitted London pub- whole system of privileges into ques- lishers against foreign rivals–Tonson v. tion. If a work were not registered prior Collins in 1760, and Millar v. Taylor in to publication, no mechanism existed to 1769–led briefly to a recognition of per- protect literary privileges against pirate petual property rights in the unique editions. The Stationers’ Company expression of an idea. But Donaldson v. clamored for recognition of their tradi- Becket in 1774 reversed this decision, and tional privileges as perpetual property de½nitively established as British law the rights, while pirate publishers insisted compromise concept of a “limited prop- that the lapsing of the act meant that all erty right” in the unique expression of previously published works were now an idea. free for all to reprint. The Donaldson v. Becket decision was Parliament ½nally ½lled the legal vacu- crucial in two respects. First, despite the um in 1710, when the so-called Statute of dissenting voice of eighteenth-century Anne de½nitively separated the question England’s most distinguished jurist, of censorship from that of literary prop- William Blackstone, it established the erty. The statute ruled that authors, and “encouragement of learning” as the those who had purchased a manuscript highest aim of the laws regulating from an author, would have an exclusive books. Second, even though copyright right to publish the work for fourteen was acknowledged to be a natural right years (the term that had previously been rooted in common law, the Donaldson v. established for patents on mechanical Becket decision held that copyright in inventions). This right could be renewed practice hinged on government legisla- for an additional fourteen years. But tion. In England, the utilitarian doctrine after this period (of fourteen or twenty- of a higher public good trumped the idea eight years), the work became part of of intellectual property rooted in natural the public domain, and anyone was free right.18 to publish it. As a result, all of the mono- polies held by the Stationers’ Company on classical texts were abolished. In 18 Mark Rose, Authors and Owners. The effect, the Statute of Anne–its full title, Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993). appropriately enough, was “A Bill for
Dædalus Spring 2002 37 Carla Hesse n early America, both natural rights of½cers administering the book trade on I intellectual and utilitarian doctrines were debated considerable latitude in redistributing property within the British colonies, and colonies privileges. The ruling did little, however, differed as to which theory formed the to undermine the monopolies of the basis of their laws.19 The Statute of Paris Book Guild, or to forestall a grow- Anne, as rati½ed by the Donaldson v. ing flood of books illegally produced by Becket decision, became the basis for the provincial and foreign printers. relevant clause in the Federal Constitu- In 1777, the French crown, confronted tion of 1787: “Congress shall have the with mounting criticism, was forced to power . . . to promote the progress of Sci- revise the system of privileges. While ence and useful Arts, by securing for lim- still refusing to recognize the concept of ited Times to Authors and Inventors the “literary property,” the king for the ½rst exclusive Right to their respective Writ- time granted authors their own category ings and Discoveries.” This article in of privileges (privilèges d’auteur). These turn became the basis of the United new privileges were to be perpetual and States Copyright Statute of May 31, 1790. inheritable, like any other form of per- The author or inventor was acknowl- sonal property. However, once an author edged as an individual with special sold a manuscript to a publisher, the claims upon his own ideas–but the pub- publisher’s claim would be limited to ten lic good dictated that those claims be years, with the possibility of a single re- limited. In America, as in England, there newal. This meant that the publisher’s thus remained a persistent tension be- privileges were to be restricted at the tween a natural-rights justi½cation for same time as unlimited privileges were perpetual copyright claims, rooted in extended to authors. The Paris Book common law, and statutory limits that Guild, predictably enraged, refused to preempted, but did not abolish, those acknowledge the new law and essentially anterior rights. went on strike against crown of½cials A similar tension in French legal until the Revolution in 1789. thinking provoked a parallel set of court The Revolution changed everything. battles. At the beginning of the eigh- “Freedom of the press” was declared and teenth century, the French crown, hop- literary privileges abrogated. The royal ing to strike a compromise between administration of the book trade was Parisian publishers and their provincial abolished, and so were the Parisian book competitors, had declared that privileges guilds. Authors were now widely cele- were not a form of perpetual property, as brated not as private creators and pos- the Parisian publishers claimed, but sessive individuals, but rather as civic rather “a grace founded in justice”; as a heroes, servants of public enlighten- result, privileges could be limited, re- ment.20 newed, or even revoked, at the king’s Hoping to establish the French book will. This ruling permitted the crown trade on a new, secular footing, the Abbé Sieyès in 1791 proposed passing a “Law 19 See Lyman Ray Patterson, Copyright in on the Freedom of the Press” that he had Historical Perspective (Nashville: Vanderbilt written with the help of Condorcet, University Press, 1968), esp. 180–202; and Jane C. Ginzburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and 20 Carla Hesse, Publishing and Cultural Politics America,” Tulane Law Review 64 (5) (May 1990): in Revolutionary Paris, 1789–1810 (Berkeley: 991–1031. University of California Press, 1991).
38 Dædalus Spring 2002 among others. Like the English Statute ple, the largest German state, Prussia, The rise of intellectual of Anne, the Sieyès law recognized revised its general legal code to reaf½rm property, authors’ texts as a form of property, the privileges of publishers, but also to 700 b.c.– originating with their creators, and sus- extend similar privileges to authors. a.d. 2000 ceptible to legal protection; yet at the During the Napoleonic period, when same time, the Sieyès law reflected the French civil code was imposed on Condorcet’s concern for the “public many German states, even more princi- interest” by limiting exclusive claims palities followed the French model: upon literary property to the lifetime of Baden was the ½rst German state to the author, plus ten years. grant real copyright to authors (1806, In the heated climate of revolutionary 1810), and the phrase Rechten des Urhebers Paris, the law proposed by Sieyès (authors’ rights) was ½rst used in Bavar- satis½ed no one. Many journalists reject- ia in 1813. Beginning with the Congress ed any law that threatened to limit the of Vienna in 1815, authors’ rights were free circulation of texts. Revolutionary increasingly and more uniformly recog- pamphleteers denounced it as a resur- nized in German law. It was not, howev- rection of discredited feudal privileges. er, until 1870 that Imperial Germany Veteran book publishers demanded a successfully adopted a uniform copy- restoration of their former rights and right law similar to those of the French privileges. and the English.21 It was only in 1793, after the Paris Book Guild had ceased functioning as a lobby- It is no coincidence that the English ing group, and after the seizure of power phrase “intellectual property” should by the Jacobins, that the National Con- ½rst appear in 1845, according to the vention was able to pass a slightly re- Oxford English Dictionary. By then, a vised version of the Sieyès law, now broad consensus had emerged that touted as a “Declaration of the Rights of “copyright” should strike a balance Genius.” The law of July 19, 1793, be- between the interests of the intellectual came the basis for all subsequent literary property owner and the public good: property law in France. It rati½ed the authors and inventors could pro½t from compromise proposed by Sieyès in 1791 their works and their ideas, but only for and, like the British Donaldson v. Becket a limited span of time. decision of 1774, enshrined the concept But this is by no means the end of the of a limited property right as the best story. Because the modern laws regulat- means to strike a balance between remu- ing intellectual property rest on a largely nerating authors and protecting the pub- unexamined set of contradictory philo- lic interest in the advancement of learn- sophical assumptions, these laws have ing. been uniquely vulnerable to challenge– In these years, a great many German not least by the continuing rise of new writers and intellectuals closely fol- methods of distributing ideas and infor- lowed the debate over intellectual prop- mation across national boundaries. As a erty in France. Since there was no uni- result, the philosophical tensions at the ½ed German state until 1870, there was heart of modern concepts of intellectual no centralized authority to regulate the book trade. Still, a number of individual 21 Reinhard Wittmann, Geschichte des deutschen German states did pass laws similar to Buchhandels: ein Überblick (Munich: Verlag C. the revised Sieyès law. In 1794, for exam- H. Beck, 1991).
Dædalus Spring 2002 39 Carla Hesse property have been played out on an twentieth centuries the private claims of on intellectual increasingly global scale, reworking the holders of authorial rights or copyrights property balance between private rights and the have been repeatedly extended from the public interest, often in dramatic new initially modest ten to fourteen years ways. after the author’s death to the current The industrial revolution created an terms of ½fty and sometimes seventy- international market for literary works ½ve years after the author’s death in and mechanical inventions–and so cre- most countries with liberal copyright ated a new need for a regime of interna- regimes. tional intellectual property rights. By the Positions on copyright were clearly middle of the eighteenth century, French not the product of disinterested jurispru- competition with Belgian and Swiss pub- dential reflection. By the nineteenth cen- lishers had led to the ½rst major interna- tury it became clear that nations that tional copyright treaties. In 1858, a Con- were net exporters of intellectual prop- gress of Authors and Artists convened by erty, such as France, England, and Ger- Victor Hugo held its ½rst meeting in many, increasingly favored the natural- Brussels in an effort to formulate a truly rights doctrine as a universal moral and international basis for the universal pro- economic right enabling authors to exer- tection of authors’ rights. Unable to cise control over their creations and secure agreement on such a universal inventions and to receive remuneration. regime, the congress instead enunciated Conversely, developing nations that a doctrine of “national treatment,” ask- were net importers of literary and scien- ing each nation to extend the legal pro- ti½c creations, such as the United States tections it offered to domestic writers and Russia, refused to sign on to interna- and inventors to foreign writers and tional agreements and insisted on the inventors as well. utilitarian view of copyright claims as A generation later, in 1886, a series of the statutory creations of particular conferences held in Berne led to the national legal regimes. By refusing to signing by ten European nations of the sign international copyright treaties, the ½rst international copyright treaty.22 developing nations of the nineteenth Despite the doctrine of “national treat- century were able to simply appropriate ment,” the process of internationalizing the ideas, literary creations, and scien- copyright protection tended to strength- ti½c inventions of the major economic en universalist claims for protection of powers freely. inviolable natural rights against statuto- The United States offers an exemplary ry limits imposed by particular nations case. As it evolved from being a net on utilitarian grounds. This progressive importer of intellectual property to a net shift in the legal spectrum toward the exporter, its legal doctrines for regulat- enforcement of natural rights has led to ing intellectual property have tended to a steady strengthening of private intel- shift from the objectivist-utilitarian side lectual property right claims over the of the legal balance toward the univer- doctrine of the public interest. Thus, salist-natural-rights side. In early-nine- over the course of the nineteenth and teenth-century America the ½rst great publishing houses in New York, Phila- 22 Peter Burger, “The Berne Convention: Its delphia, and Boston built fantastic for- History and Its Key Role in the Future,” Journal tunes on unauthorized, and unremuner- of Law and Technology 3 (1) (Winter 1988). ated, publication of British writers. They
40 Dædalus Spring 2002 justi½ed their practices on the utilitarian test to the Senate and the House in 1842: The rise of grounds that copyright was statutory intellectual All the riches of English literature are property, and that it was in the American public 700 b.c.– ours. English authorship comes to us free interest to have great works available for a.d. 2000 as the vital air, untaxed, unhindered, even the cheapest possible prices.23 Harper’s by the necessity of translation, into the Monthly, for example, was created exclu- country; and the question is, shall we tax sively from unauthorized reproductions it, and thus impose a barrier to the circu- of copy from British magazines. In 1843 a lation of intellectual and moral light? copy of Charles Dickens’s A Christmas Shall we build up a dam to obstruct the Carol sold for six cents in the United flow of the rivers of knowledge?25 States, while in England it cost the equi- valent of two dollars and ½fty cents.24 Knowledge was there for the taking if The Reverend Isaac K. Funk, founder of the grab could be justi½ed by the public Funk and Wagnalls, made his initial for- good. A radical version of Condorcet tune by pirating Ernst Renan’s The Life thrived in mid-nineteenth-century of Jesus. Against these large publishing America. By the 1870s the American and printing businesses a movement for debate became sharply focused. On one American recognition of international side, trade protectionists, printers’ copyright claims emerged by the 1830s, unions, and publishing houses whose led largely by American writers and fel- fortunes were rooted in pirating British low advocates of a nativist American literature argued against any interna- culture who felt that without interna- tional agreement. On the other side, tional copyright indigenous writers advocates of indigenous authors allied could not compete with their British themselves with partisans of free trade counterparts in the American literary and international copyright, claiming market. They drew increasingly upon universal natural rights of authorship. the rhetoric of authors’ universal natural A critical shift in the political balance rights, and they appealed on patriotic occurred in the 1880s as the older grounds to Congress to act to encourage American publishing houses on the east American letters by preventing cheap coast began to see their pro½ts eroding reprints of unauthorized British texts. in the face of a new generation of mass Not surprisingly, despite repeated penny-press publishers, expanding espe- petitions to Congress from distin- cially in the midwestern states, who guished writers in both America and undercut their costs and reached yet England, this movement was repeatedly wider markets. In the face of this chal- thwarted by the more intensive lobbying lenge the older houses reshaped their of the American publishing industry in business strategies and their arguments the name of the public interest. Thus the about intellectual property. They now Sherman and Johnson publishing house realized that they would be better posi- of Philadelphia sent the following pro- tioned than the new generation of pub- lishers to sign exclusive copyright agree- 23 Aubert J. Clark, The Movement for ments with foreign authors that would International Copyright in Nineteenth-Century be enforceable within the United States. America (Washington, D.C.: The Catholic The signing of the Berne Convention in University of America Press, 1960).
24 Sidney Moss, Charles Dickens’ Quarrel with 25 Cited in Clark, The Movement for International America (Troy, N.Y.: Whitson Pub. Co., 1984). Copyright, 77.
Dædalus Spring 2002 41 Carla Hesse Europe in 1886 added further momen- duction of images used in a circus poster. on intellectual tum to a shift in the views of major pub- The argument of the defendant, Donald- property lishing houses like Harper’s and Scrib- son, was that the images were of such a ner, who recognized the advantage of the generic nature as to contain insuf½cient movement for American adherence to originality to qualify as artistic creation some form of international agreement, susceptible to copyright protection. The at least with England. American theolo- Holmes court demurred, arguing that gians, including the Reverend Isaac the courts were not to be put in the role Funk, now denounced the “national sin of literary or artistic critics, that is, of literary piracy” (which had allowed judges of the artistic merit of a work, him to make his fortune on his pirated and that moreover, any created image “is Life of Jesus) as a violation of the seventh the personal reaction of an individual commandment.26 And their voices upon nature. Personality always con- resounded on the floor of Congress. tains something unique. It expresses its Although Congress refused to sign the singularity even in handwriting, and a Berne Convention on the grounds that very modest grade of art has in it some- American law did not recognize authors’ thing irreducible, which is one man’s natural rights, in 1891 an international alone.” agreement with England for reciprocal Through the Holmes decision the rhet- copyright protection was ½nally signed oric of authorial originality and natural by Congress. rights–the Defoe, Diderot, and Lessing By the opening of the twentieth centu- side of the Enlightenment debate–made ry, as America came to be a full-fledged its way into American jurisprudence at competitor in international commerce the very moment when America began in intellectual property and a net export- to supplant Europe as the hegemonic er of intellectual property, American global economic power. The course of legal doctrine began to move toward an twentieth-century American copyright increasing recognition of unique author- law–from Bleistein v. Donaldson through ial rights rooted in the sanctity of the United States adherence to the Berne personality of the creator, rather than Convention in 1988 to the Digital Mil- simply in commercial privileges extend- lennium Copyright Act of 1995–has ed for utilitarian ends. The personality been a story of the steady strengthening theory of intellectual property had been of the proprietary rights of intellectual present in the Anglo-American tradition property owners at the expense of public since the eighteenth century, but the sin- access and interest.28 It is a history of gle most important source for this shift the tipping of the balance in the found- in principle was the Supreme Court deci- ing principles of eighteenth-century sion written by Justice Holmes in Blei- intellectual property law away from the stein v. Donaldson (188 u.s. 239) in 1903.27 aim of public utility through “encour- The case involved the commercial repro- agement of learning” toward the en- hancement of private commercial gain. 26 Henry Van Dyke, The National Sin of Literary Piracy (New York: Charles Scribner’s Sons, 28 James Boyle, Shamans, Software, and Spleens: 1888). Law and the Construction of the Information 27 Robert C. Post, “Reading Warren and Society (Cambridge, Mass.: Harvard University Brandeis: Privacy, Property, and Appropri- Press, 1996); and Jessica Litman, Digital ation,” Case Western Reserve Law Review 41 (3) Copyright (Amherst, N.Y.: Prometheus Books, (1991): 658–662. 2001).
42 Dædalus Spring 2002 he tension between utilitarian inter- 29 The rise of T inventors. The early Bolsheviks thus intellectual ests and authors’ natural rights has also famously “nationalized” a list of great property, played itself out in modernizing soci- Russian writers following the 1917 revo- 700 b.c.– a.d. 2000 eties beyond the United States and lution. And Chinese authorities during Western Europe. Developing nations, the Cultural Revolution promulgated the which are net importers of cultural following popular saying: “Is it neces- goods and technology, ½nd themselves sary for a steel worker to put his name in the position of the United States in on a steel ingot that he produces in the the nineteenth century. And the tenden- course of his duty? If not, why should a cy has been for these nations to hold fast member of the intelligentsia enjoy the to the utilitarian claim that the national privilege of putting his name on what he public interest should come before produces?” recognition of the natural right to prop- The story of intellectual property in erty in international copyright, patent, Russia and China, despite brief experi- or trademark claims asserted by export- ments with liberal property-based ing nations. regimes in the early twentieth century, In Russia and China the eighteenth- has essentially been a story of the devo- century battles were fought in much the lution of a monopoly on ideas and same terms, although with different inventions from theocratic regimes to actors. Theocratic authority gave way to communist states. In both the Soviet secular power within a Marxian frame- and Chinese communist regimes, how- work, which drew upon the Lockean ever, there was an increasing recogni- notion that new ideas and inventions tion of the necessity to create nonprop- were the result of the mind working erty-based incentives for individual upon natural resources. This led to a authors and inventors. A system of labor theory of intellectual production state-issued awards, prizes, and privi- that was assimilable to the Marxist leges became the socialist mechanism notion of the labor theory of value. But for encouraging creation and invention. Marx gave it a twist à la Condorcet. He The Soviet Union created a system of argued that labor was inherently social “Authors’ Certi½cates” that recognized rather than individual in nature, even in individual contributions to the public the case of mental labor, when the mind good, and the Chinese, after the Cultural worked alone with its own resources. In Revolution, followed suit. While the his early manuscripts, Marx suggested state retained the power to exploit, or that this was because the creating indi- not exploit, the contributions of these vidual was the product of social experi- individuals, the certi½cates made their ence–he owed his livelihood and educa- bearers eligible for material rewards and tion to the society that produced him. for remuneration from the pro½ts gener- Because he worked with natural resourc- ated by their creations. In socialist coun- es that should belong to all, his mental labors were social, and hence the prod- 29 John N. Hazard, Communists and Their Law ucts of them should belong to society as (Chicago: University of Chicago Press, 1969), a whole. The people, in the form of the 243–268; Serge Levitsky, Introduction to Soviet Copyright Law (Leyden: A. W. Sythoff, 1964); revolutionary people’s state, were thus Michael A. Newcity, Copyright Law in the Soviet to lay claim to the right to exploit the Union (New York: Praeger Publishers, 1978); creations of individual authors and Alford, To Steal a Book is an Elegant Offense.
Dædalus Spring 2002 43 Carla Hesse tries, the logic of utilitarianism–mar- Because these states remain essentially on intellectual ried to a state monopoly on the distribu- theocratic in nature, however, the law property tion of knowledge–led to a system of has preserved the state’s right to censor public patronage of authors and inven- all publications as it deems necessary, tors rather than a recognition of their and to assert the broad discretionary individual property rights. power of the government to set limits on Islamic states have followed yet anoth- the terms and duration of an author’s or er path. These states have remained inventor’s rights in relation to his cre- theocracies, and so shar2‘a, or Koranic ations. In Iran, for example, the duration law, remains the highest authority, even of private copyright claims is set at thirty for secular potentates. Koranic property years after the author’s death. The state law traditionally applied only to tangible then retains an exclusive right on the things that could be apprehended by the creation for another thirty years before it ½ve senses. It is notoriously silent on the is made accessible to the public at large. question of ownership of ideas.30 In Moreover, Islamic states in general do Islamic jurisprudence, however, where not extend copyright protection to non- the Koran is silent, governments are per- nationals, although some bilateral agree- mitted to make a new law, as long as it ments have been signed between Arab does not explicitly conflict with Koranic nations. In the international arena, injunctions. As a consequence, in the Islamic law has thus tended toward the twentieth century a body of intellectual utilitarian position that the state’s inter- property law has emerged in most est is higher than any notion of the uni- Islamic states, based on Western legal versal natural rights of authors or inven- codes. tors. These Western-style copyright laws In the closing decades of the twentieth have recently come under new scrutiny century the outlines of a serious conflict by Muslim jurists, and a lively debate over the nature and scope of intellectual has emerged between legal scholars as to property have emerged in the interna- whether any concept of ownership of tional arena. In general, developing na- ideas is compatible with shar2‘a. Some tions–including not only China, Tai- scholars argue that the concept of “intel- wan, Russia, and the Middle Eastern lectual property” is inherently incom- states, but African and South American patible with the Koranic injunction nations as well–have employed the util- against the ownership of anything intan- itarian argument, derived from Con- gible, suggesting that it will only lead to dorcet, that intellectual property is private monopolies of some individuals inherently social in nature and that the over knowledge. Others make the dis- state has the right to limit the individual tinction between ideas and their tangible claims of its citizens as well as others in expression and defend the modern con- the name of the public good. This argu- cept of copyright.31 ment is used, as it was in nineteenth- century America, to justify these 30 Steven D. Jamar, “The Protection of Intel- nations’ refusal to recognize copyright lectual Property under Islamic Law,” Capital University Law Review 21 (1992): 1079–1106; and patent claims by nonnationals. Sayed Hassan Amin, Law of Intellectual Property in the Middle East (Glasgow: Royston, 1991). Reports, 8 May 1988, and Mufti Taqi Usmani, 31 See Simon Buckingham, “In Search of Copy- “Copyright According to Shariah,” Albalagh, right in the Kingdom,” Middle East Executive an Islamic E-Journal (23 April 2001).
44 Dædalus Spring 2002 Conversely, the United States and The consequences of this evolution in The rise of intellectual Western Europe have witnessed a shift Western, and especially American, intel- property, in their jurisprudential traditions away lectual property law are troubling for 700 b.c.– from the utilitarian side of the eigh- several reasons. Most immediately, in a.d. 2000 teenth-century intellectual property bal- the global arena questions of patents on ance and toward an unprecedented aids drugs, stem cells, and ethnobotan- strengthening of the doctrine of the uni- ical practices are morally urgent. The versal natural rights of authors and dominance of the natural-rights view inventors to the exclusive commercial leads to immediate suffering and to the exploitation of their creations and appropriation of local knowledge for inventions. And since the 1970s the international gain. The loss of a legal United States and Western European balance in the global arena risks giving nations have been increasingly aggres- monopolistic power to exporter nations. sive in using trade sanctions and inter- Equally important, it puts at risk the lib- national trade agreements to coerce eral political balance between individual developing nations to recognize precise- gain and the public good that was the ly this view of intellectual property foundational aim of the intellectual rights.32 property laws within Western democrat- ic polities themselves. The cultural and 32 Alford, To Steal a Book is an Elegant Offense; scienti½c health of Western democracies Zachary Aoki, “Will the Soviet Union and the in the future will depend on a public People’s Republic of China Follow the United renewal of the animating mission of the States’ Adherence to the Berne Convention?” Enlightenment concept of intellectual Boston College International and Comparative Law property: to dismantle commercial Review 13 (Winter: 1990): 207–235; and Natasha Roit, “Soviet and Chinese Copyright: monopolies on the circulation of Ideology Gives Way to Economic Necessity,” thought and to spread knowledge freely Loyola Entertainment Law Journal 6 (1986): among our citizenry. 53–71.
Dædalus Spring 2002 45 Arthur Goldhammer
On Diderot & Condorcet
The texts that follow are excerpts from ideas), but also for their styles. two seminal documents of the Enlight- Diderot is all energy and abundance; enment debate about intellectual prop- Condorcet is poise and restraint. erty that Carla Hesse recounts in her Diderot’s torrents of language are meant essay in this volume, and that Roger to sweep opposition away, Condorcet’s Chartier analyzes in detail in his contri- logic and balance to hold it in check. bution. The ½rst is by Denis Diderot One is not surprised to ½nd Condorcet (1713–1784), writer, philosopher, and edi- conceding, with cavalier nonchalance, tor of the Encyclopédie. The second is that “privilèges”–or rights to publish, from the pen of Marie Jean Antoine roughly equivalent to copyrights–“exist Nicolas de Caritat, Marquis de Con- only for expressions, for sentences, not dorcet (1743–1794), philosopher, mathe- for substance or ideas,” as if expression matician, and politician executed for his were a mere trifle, whereas for Diderot Girondin sympathies during the Terror. the paramount question is what proper- The two texts are a study in contrasts, ty a man can own “if a work of the not only for their contradictory posi- mind–the unique fruit of his upbring- tions on the key issue of authorial rights ing, his studies, his evenings, his age, his (Diderot held that authors are the natu- researches, his observations; if his ½nest ral owners of their texts, whereas Con- hours, the most beautiful moments of dorcet emphasized the public’s interest his life; if his own thoughts, the feelings in the widest possible dissemination of of his heart, the most precious part of himself, that which does not perish, which makes him immortal–does not Arthur Goldhammer has translated more than belong to him?” eighty books from French into English, including For Condorcet, moreover, the discus- works by Francois Furet, Marguerite Duras, sion is an abstract one, best conducted in Jacques Le Goff, Emmanuel Le Roy Ladurie, Jean the language of freedom, natural rights, Starobinski, and Roger Chartier, among others. A and societal interests. In Diderot’s text, Chevalier de l’Ordre des Arts et des Lettres, he has by contrast, one hears echoes of a very also received the Médaille de Vermeil of the harsh and concrete struggle for exis- Académie française. He is currently working on a tence: the battle among publishers for new translation of Tocqueville’s “Democracy in market share, among writers for recog- America” for the Library of America. nition, between writers and publishers
46 Dædalus Spring 2002 for the division of pro½ts and the appor- the eighteenth-century man of letters, On Diderot tionment of risk. and also those that exemplify the com- & Condorcet Condorcet’s text speaks for itself. But plexity of the book trade as it existed in readers new to Diderot may be aston- Diderot’s time, with its international ished to ½nd, instead of a coherent argu- competition, pirated editions, and royal ment, something close to a rant, deliv- regulation and censorship. ered in a breathless rush of dense (and, Underlying the contradictory posi- to the modern reader, sometimes con- tions of Diderot and Condorcet are fusing) allusions. The rapid shifts of reg- unspoken assumptions about the precar- ister and tone must also have disconcert- iousness of the writer’s existence, about ed the booksellers who commissioned the very question of survival. For Con- the piece: they had the draft reworked dorcet, whose image of the man of let- by other hands, and Diderot’s words did ters is the philosopher or mathemati- not appear in their original form until cian, survival is not an issue: if private after his death. means are not available, there is always When Diderot drafted his brief in institutional support. Diderot, for whom 1763, he was still in the thick of publish- the paradigmatic writer is the bohemian ing L’Encyclopédie. Condorcet’s piece, in his garret, is less sanguine: “How though in some ways a riposte to many authors,” he asks, “have not ob- Diderot, was not published until 1776, tained the celebrity they deserve until thirteen years later, as part of a larger long after their death? This is the fate of defense of freedom of the press. nearly all men of genius. They are not Because the two texts have such differ- within reach of their century.” ent complexions, the selection of pas- Yet Diderot is sensitive not only to the sages to translate was based in each case dif½culties of his own estate, the men of on different principles. For the Con- letters, but also to those of his partners dorcet, the choice was easy, since his dis- and sometime adversaries, the publish- cussion of the central issue of authorial ers: is not the purpose of regulation “to rights and intellectual property is con- protect the legitimate interests of the ½ned to the ½nal pages of a much longer printer, to encourage him, to secure a text. I therefore chose to translate this future for him and his children, to bind compact and coherent ½nal section in its him to his estate and interest him in entirety. risky enterprises by ensuring that his In the case of the Diderot, the criteria household and his family would enjoy of selection were more complex. It was the fruit thereof in perpetuity”? He essential, ½rst of all, to choose passages writes not as an ideologue but as a man illustrating the delicacy of Diderot’s engaged in a profession and deeply position: although ostensibly writing a aware of its complexities, and as such he brief on behalf of the guild of book- has no “wish to be cleverer than Provi- sellers, he is at pains to justify a continu- dence, which is content to balance goods ation of privileges in the form of author- with ills.” ial property rights without thereby justi- Because the meaning of the publishing fying corporate monopolies in publish- privilège in France changed over time, I ing. I also wanted to include passages have left this term in French. that offer a particularly vivid image of
Dædalus Spring 2002 47 Denis Diderot
Letter on the book trade
Excerpts selected and translated by Arthur Goldhammer
I shall begin by saying that the question renewal; what is the nature of a book- here is not simply one of the interests of seller’s stock-in-trade; what rights of a guild. What does it matter to me if ownership to a work does the bookseller there is one guild more or less? Can this acquire from the writer (littérateur); possibly concern me, one of the most whether those rights are temporary or zealous proponents of liberty in the eternal. The examination of these vari- broadest sense?–who suffers pangs at ous points will lead me to clarify others, the sight of restrictions imposed on the as you have requested. . . . exercise of the lowliest of talents, of nat- A bookseller’s stock-in-trade consists ural industriousness and strength hob- of the possession of a more or less con- bled by convention?–who has always siderable number of books appropriate been convinced that corporations were to different estates of society and assort- unjust and catastrophic, and who would ed in such a way that the certain but look upon their utter and absolute aboli- slow sale of some, advantageously com- tion as a step toward wiser government? pensated by the equally certain but more The object is to examine, as things rapid sale of others, favors the increase now stand, or indeed under any other of the initial possession. If a bookseller’s hypothesis, what should be done in stock does not satisfy these conditions, it response to the harm that has already is ruinous. . . . been or might yet be done to our book- It is not a merchant who is speaking to sellers; whether foreigners’ attacks on you; it is a man of letters whose col- our commerce should be suffered any leagues have on occasion consulted him longer; what is the relation between as to the use of their talents. If I were to commerce and literature; whether it is propose some important project to possible to degrade one without injuring them, they would not answer, “Who will the other, and impoverish the bookseller read me? Who will buy me?” but rather, without ruining the author; what priv- “When my book is done, what book- ilèges are in regard to books, and whether seller will take it?” they should be included under the gener- Most of these people haven’t a sou, al and odious denomination of other and what they need right now is a com- monopolies (exclusives); if there is some mission to produce some vile pamphlet legitimate basis for limiting their dura- that will earn them quick money and put tion or denying applications for their bread on the table tomorrow. In fact, I
48 Dædalus Spring 2002 could name you twenty great and good refused to another.” And so it did seem, Letter on the works whose authors died before ½nding though this was an occasion if ever there book trade a merchant to take them, even at a paltry was one to plead the cause of the ½rst price. . . . occupant and of legitimate possession [How many of the] celebrated printers based on risks run, care taken, and mon- whose editions we now seek out, whose eys advanced. Still, in order to ensure work astonishes us, and whose memory that the derogation from common law we hold dear died poor? They were, would not be excessive, it was deemed moreover, on the verge of abandoning appropriate to limit the duration of the their type and their presses when the jus- monopoly. You will note that the min- tice of the magistrate and the liberality istry, proceeding with some knowledge of the sovereign came to their rescue. of what it was about, responded in part Caught between their taste for science to your objections; but what you may and for their art and their fear of being not see, and what it did not see initially, ruined by greedy competitors, what did was that, far from protecting the entre- these clever and unfortunate printers preneur, it was laying a trap for him. Yes, do? Among the manuscripts that re- sir, a trap, and you shall be the judge of mained, they chose a few that might suc- it. . . . ceed if printed; they quietly prepared an Suppose that L’Esprit des lois were the edition; they published it, and to ward ½rst work by an unknown author rele- off as best they could the counterfeits gated by misery to a ½fth-floor apart- that had begun their ruin and would ment; despite the excellence of the have completed it, they went to the work, I doubt that it would have made monarch just prior to publication and three editions, and there are now per- from him sought and obtained an exclu- haps twenty. Nineteen of twenty people sive privilège for their venture. who bought the work on the basis of the There, sir, is the ½rst line of the book- author’s name, reputation, rank, and tal- seller’s code, the ½rst regulation. Before ent, and who quote it endlessly without continuing, sir, may I ask you what you having read or understood it, would disapprove of in the merchant’s precau- scarcely know its name. And how many tion or the sovereign’s favor? “This authors have not obtained the celebrity monopoly,” you will answer, “was con- they deserve until long after their death? trary to the common law [governing This is the fate of nearly all men of items in the public domain].” That I genius. They are not within reach of grant you. “The manuscript for which it their century. They write for the next was granted was not the only one that generation. existed, and another typographer had or When will people go to the bookseller could procure a similar one.” That is in search of their works? Thirty years true, but only in certain respects, for the after those works have left his store for edition of a work, especially in those the pulp dealer’s. In mathematics, chem- early days, required not only the posses- istry, natural history, law, and a very sion of a manuscript but the collation of large number of specialized ½elds, it a large number of them–a lengthy, happens every day that the privilège dif½cult, and costly process. But I won’t expires before half the edition has sold stop you; I do not wish to be dif½cult. out. Now, clearly, what is the case today “So,” you will add, “it should have must have been the case in the past and seemed hard to grant to one what one will be the case always. After the ½rst
Dædalus Spring 2002 49 Denis edition of an old manuscript was pub- our conventions than nature in her laws; Diderot on intellectual lished, it often turned out, on publica- and to disturb the order of the whole property tion of the second, that the remainder of with the cry of an atom under the the ½rst had to be written off as a pure impression that it has suffered a rude loss by the holder of the privilège. shock. One must not imagine that things hap- Nevertheless, this second favor was pen for no reason, that there were no rarely granted; there was an in½nity of wise men before the time in which one claims, blind as well as enlightened, as it happens to live or that our predecessors may please you now to call them. The were less aware of the public interest or majority of printers, who, in this corpo- cherished it any less than we do. Se- ration as in others, are more ardent to duced by systematic ideas, we attack commandeer the resources of the inven- their behavior, and we are unwilling to tive and enterprising man than to emu- acknowledge their prudence inasmuch late his inventiveness, howled in protest as the dif½culty their regulation was when deprived of the hope of despoiling intended to remedy is one from which their colleagues. They did not, as you we no longer suffer. The printer made may well suppose, fail to adduce either further representations to the magistrate the wound inflicted on freedom of com- concerning the unduly narrow limits of merce or the despotism that a few indi- his privilège, leading to a new regulation, viduals were prepared to exercise on the or a modi½cation of the previous one. public and on men of learning. Bear in mind, sir, that we are still speak- They submitted to the university and ing of manuscripts in the public domain. to the parlements the bogeyman of a liter- The merchant’s arguments were ary monopoly, as if a French bookseller weighed, and the decision was made to could sell a work at an exorbitant price grant him a second privilège upon expira- without some attentive foreigner devot- tion of the ½rst. I leave it to you to judge ing his days and nights to counterfeiting whether this made things worse or bet- it and without his greedy colleagues hav- ter, but it was certainly one or the other. ing recourse to similar methods, in con- In this way one proceeded little by lit- tempt of all afflictive laws, as we have tle toward perpetuity and immutability seen all too often, as if the merchant of the privilège, and it is obvious that, were unaware that his true interest lay in with this second step, the intention was the rapidity of sale and the number of to protect the legitimate interests of the editions and as if he were not more printer, to encourage him, to secure a keenly cognizant of the risks and bene- future for him and his children, to bind ½ts than anyone else. Would they not him to his estate and interest him in say, if forced to such an extreme, that the risky enterprises by ensuring that his person who renews the privilège should household and his family would enjoy have the power to set the price of the the fruit thereof in perpetuity; and I thing? It is a matter of experience, how- shall ask you whether these views were ever, that the works most often reprinted or were not sound. To blame some are the best, the most frequently pur- human institution because its goodness chased, the most widely sold for the low- is not general and absolute is to insist est price, and the most certain instru- that it be divine; it is to wish to be clev- ments of the bookseller’s fortune. erer than Providence, which is content Nevertheless, these howls from the to balance goods with ills; to be wiser in dregs of the corporation, reinforced by
50 Dædalus Spring 2002 those of the university, were heard by insuf½ciently aware of the revolution Letter on the the parlements, which thought they saw that had taken place in the regulation of book trade in the law unjust protection for a small the book trade and the nature of priv- number of individuals at the expense of ilèges, it was still put off by the bogeyman others; which led to edict after edict of monopoly. . . . The spirit of interest is against the prorogation of privilèges. But not the same as the spirit of equity, how- allow me, sir, to remind you once more, ever. Those who have little or nothing in defense of the parlements, that these are quite prepared to give up the little or ½rst privilèges applied only to old works nothing they have in exchange for the and original manuscripts, that is, effects right to help themselves to the fortune of that no one had acquired as property and the well-to-do. . . . that were therefore in the public Do you not ½nd the behavior of some domain. Unless you attend to this point, of these booksellers quite strange? you will confuse very different objects. A Moved by the immediate desire to help privilège of the time I am discussing now themselves to some of their colleagues’ no more resembles a privilège of today wealth, they left the wealth of their off- than a momentary favor, a freely granted spring vulnerable to all sorts of depreda- and revocable kindness, resembles a per- tions. You will agree, sir, that these sonal possession, a ½xed acquisition, wretches behaved like men whose which is constant and inalienable with- nephews and grand-nephews were con- out the express consent of the owner. demned in perpetuity to remain as poor What follows will give this distinction as their ancestors. all the solidity you require–you may But I would rather trace the history of count on it. . . . the bookseller’s code and the institution If, upon expiration of the initial priv- of privilèges than engage in distressing ilège, the bookseller applied for a renew- reflections upon the nature of man. In al, it was granted without dif½culty. Why order to put an end to these lawsuits was this done? Doesn’t a work belong to between booksellers that proved so its author as much as his house or his fatiguing to both Council and Chan- ½eld? Can he not alienate ownership cellery, the magistrate verbally prohibit- forever? Should he be allowed on any ed the guild from printing anything pretext whatsoever to withdraw owner- whatsoever absent a letter of privilège ship of the work from the person to stamped with the great seal. The guild, whom he freely transferred his right? or at any rate the impoverished part of it, Isn’t the person to whom ownership has made remonstrances, but the magistrate been transferred deserving of the full held ½rm; he even extended his verbal protection that the government grants to order to include old books, and the owners of property against other sorts of Council, basing its decision on this order usurpers? . . . concerning privilèges and their continua- Nevertheless, despite these principles, tion by letters-patent of December 20, which may be regarded as the founda- 1649, prohibited the printing of any book tion of jurisprudence regarding owner- without a royal privilège, gave preference ship and acquisition, Parlement contin- to the bookseller who was the ½rst to ued, through its edicts, to disapprove of obtain letters of continuation when renewals and prorogations of privilèges, these were granted to several different the only imaginable reason for which people, banned counterfeits, returned was the following: namely, that, being applications for continuations upon
Dædalus Spring 2002 51 Denis expiration of the privilège, limited such our immortal La Fontaine the privilège for Diderot on intellectual applications to those to whom privilèges his Fables. It is a handsome thing, surely, property were ½rst awarded, allowed such appli- for a people to honor the memory of its cants to apply for renewal whenever great men in their posterity. The senti- they saw ½t, and insisted that all letters ment is too noble, too generous, too granting or continuing privilèges be worthy for any criticism of it to issue recorded in the register of the guild, from my mouth. The conqueror of which the syndic could be required to Thebes laid waste to Pindar’s homeland show upon request, so that in the future but left the poet’s house untouched, and no one could claim ignorance and no history remembers this gesture as hon- fraudulent or unanticipated competition oring the victor no less than it honored could arise over a particular permission. literature. But if Pindar, during his life- Does it not seem to you, sir, that after time, had sold his house to some The- this decision, the story should have been ban, do you suppose that Alexander ½nished, the ministry having done would have torn up the contract of sale everything within its power to ensure and banished the legitimate owner? the tranquility of those in possession of Some maintain that the bookseller titles? But the indigent and rapacious had no title of property, and I am quite portion of the guild made one last effort willing to believe it. It is not for a man of to remove the fetters from its hands. You my estate to plead the cause of the mer- may be surprised that a man to whom chant against the posterity of the author, you would not refuse the epithet “com- but it is right for a just man to acknowl- passionate” speaks out against the indi- edge justice and to speak the truth even gent. Sir, I should be glad to give alms, when it goes against his own interest, but I refuse to be robbed, and if misery and it might perhaps be in my interest can serve as an excuse for usurpation, not to deprive my children, to whom I where are we? . . . shall leave still less of fortune than of Isn’t the person to whom the privilège is renown, of the sad resource of despoil- granted the one who has acquired the ing my bookseller when I am no longer manuscript from the author and paid here. But should they ever be base him for it? Who is the owner? Who is enough to call upon authority for help in the most legitimate owner? Did he not committing this injustice, I say that the consummate his enterprise under a cer- sentiments I have tried to impart to tain safeguard, under the protection of a them must have vanished from their warrant signed by the hand of the sover- hearts, since for the sake of money they eign, which he holds? If it is just for him trample all that is sacred in the civil laws to enjoy the bene½ts of that protection, of property; that I believed myself to be, is it not unjust that he be despoiled of it? and apparently was, the master of what I Is it not indecent to permit such a thing? produced, for better or for worse; that I Sir, these are the laws concerning priv- freely and voluntarily alienated those ilèges as they stand, and this is how they products of my hand; that I received for came to be. Though they have some- them the price I asked; and that the sec- times been attacked, they have been tion of vineyard or acre of meadow be- maintained continuously, with the queathed to me by my forebears that I exception of one recent circumstance. may yet be obliged to sell in order to By a decree of September 14, 1761, the provide for their education no more Council granted to the descendants of belongs to them than this. Let them
52 Dædalus Spring 2002 therefore make up their minds which the estate of bookseller, the guild of Letter on the course to take: either they must declare booksellers, the corporation, with the book trade that I was mad when I made my bargain privilège and the privilège with the title of or convict themselves of the most glar- ownership, all things which have noth- ing injustice. . . . ing in common–no, sir, nothing! So, The odious title that consists in con- then, destroy all guilds, restore to all citi- ferring gratuitously upon a single indi- zens the freedom to use their faculties as vidual a bene½t to which everyone holds their tastes and interests dictate, abolish a just and equal claim–that is the privi- all privileges, including those of the lege abhorred by good citizen and bookseller–I grant you this; all will be enlightened minister alike. It remains to well, so long as the laws pertaining to be seen whether the bookseller’s privilège contracts of purchase and sale subsist. is of this kind. But the foregoing has In England, there are book dealers and shown how misleading this idea is: the no guild of booksellers; there are printed bookseller acquires a manuscript by con- books and no privilèges. Nevertheless, the tract; the ministry, with its permission, counterfeiter is considered as dishonor- authorizes the publication of that manu- able there as the man who steals, and script and guarantees the buyer’s tran- this theft is prosecuted by the courts and quil possession. What is there in this punished by the laws. Books printed in that is contrary to the general interest? England are counterfeited in Scotland What is done for the bookseller that is and Ireland, but it is unheard of for not done for any other citizen? I ask you, books printed in London to be counter- sir, whether the buyer of a house does feited in Cambridge or Oxford. The not acquire the exclusive possession and point is that the English see no differ- enjoyment of that house; whether, from ence between the purchase of a ½eld or a this point of view, all contracts that house and the purchase of a manuscript, assure an individual of the ½xed and and in fact there is none, unless perhaps constant possession of a good of any it is in favor of the purchaser of the man- nature whatsoever are not exclusive uscript. This is what I insinuated to you privileges; whether, on the grounds that earlier and what the partners in the pub- the owner has received suf½cient com- lication of La Fontaine’s Fables demon- pensation for the price he paid for his strated in their brief, and I defy anyone acquisition, it is legitimate to deprive to refute their argument. him of it; whether such spoliation would What property can a man own if a not be the most violent act of tyranny; work of the mind–the unique fruit of whether such an abuse of power, by his upbringing, his studies, his evenings, tending to make all fortunes insecure his age, his researches, his observations; and all legacies uncertain, would not if his ½nest hours, the most beautiful reduce a people to the condition of serfs moments of his life; if his own thoughts, and ½ll the state with bad citizens. For it the feelings of his heart, the most pre- is always true that any man who thinks cious part of himself, that which does that he has no property in the state, or not perish, which makes him immor- only a precarious property, can never be tal–does not belong to him? What com- a good citizen. Indeed, what would parison between the man, the very sub- attach him to one plot of land rather stance of the man, his soul, and the ½eld, than another? the meadow, the tree or vine that nature The prejudice comes from confusing in the beginning offered equally to
Dædalus Spring 2002 53 Denis everyone, and which the individual presumption of valid possession under Diderot on intellectual appropriated only through cultivation, the rules in force, accepted literary prop- property the ½rst legitimate means of possession? erties in the division of an estate, or to Who has a greater right than the author force them to make demands upon their to dispose of what he has made by gift or co-legatees, which justice could not be sale? Now, the right of ownership is the denied them since they accepted these true measure of the buyer’s right. If I properties under the law’s authority, leave my children the privilège of my which guaranteed them as real; to op- works, who would dare take it from pose children to children, mothers and them? If, forced to alienate that privilège fathers to mothers and fathers, creditors to meet their needs or mine, I transfer to assignees; and to impose silence on ownership to another, who could contest justice in general. . . . his ownership of the property without But however kind and muni½cent a jeopardizing every principle of justice? prince friendly to letters may be, his Without this, how vile and miserable the generosity can hardly be extended condition of the man of letters would beyond known talents. How many be! A perpetual ward, he would be treat- attempts must be made, happy and ed like an imbecile child whose minority unhappy, before the writer emerges never ends. Of course the bee does not from obscurity and acquires the celebri- make honey for itself, but does man have ty that attracts the notice and the recom- the right to use other men the way he pense of sovereigns? uses the honey-making insect? Once again, sir, we must look to the I repeat, the author is master of his beginning of things, for it is the com- work, or no one in society is master of mon fate of men to be nothing before his property. The bookseller owns the they are something, and it may even be work as it was owned by the author; he desirable for honors and fortune to keep has the incontestable right to pro½t pace with the progress of merit and from it as he sees ½t through repeated service, even though the beginning of a editions. It would be as senseless to deny man’s career is the most important and him this as to require a farmer to leave dif½cult time of his life. A man recog- his ½eld unplanted or the owner of a nizes his genius only upon putting it to house to leave his apartments empty. the test. The eaglet trembles like the Sir, the privilège is nothing but a safe- young dove at the moment it ½rst un- guard granted by the sovereign for the folds its wings and entrusts itself to a preservation of a good whose defense, breath of air. When an author composes absent his express authority, would a ½rst work, he does not know what it is often cost more than it is worth. To worth, nor does the bookseller. If the extend the notion of the bookseller’s bookseller pays us as he wishes, we in privilège beyond these bounds would be a turn sell him what we are pleased to sell mistake; it would be to contemplate an him. It is success that instructs the mer- encroachment of the most atrocious chant and the man of letters. The author kind; to make a mockery of contract and may go into partnership with the mer- property; to inflict iniquitous harm on chant: a bad bargain, for it presumes too men of letters or their heirs and proxies; much con½dence on one side and too to gratify, through tyrannical partiality, much honesty on the other. Or he may one citizen at the expense of his neigh- permanently cede ownership of his work bor; to sow discord in a multitude of for a price that does not go far, because it tranquil families; to ruin those who, on is and must be based on the uncertainty 54 Dædalus Spring 2002 of success. Nevertheless, you have to Our position, you will tell me, is Letter on the have been in my place, the place of a embarrassing. I know it. book trade young man who for the ½rst time collects But you have placed yourself in this a modest tribute for a few days of medi- predicament through bad policy, and tation. His joy surpasses understanding. your indigence keeps you in it. You If he derives the further bene½t of public mustn’t punish the innocent for your applause from his success, if he sees his own faults and take from me with one bookseller a few days after his début and hand what you continue to sell me with ½nds him polite, decent, affable, reassur- the other. But once again, the abolition ing, and calm, he is satis½ed! At that of corporations, if some day this falls moment the price of his talent changes, within your power, has nothing to do and I cannot deny that the increase in with privilèges. The two things are so the commercial value of his second ven- mixed up in your mind that you have ture is related to the decrease in the risk. dif½culty separating them. Even if every- It seems that the bookseller, anxious to one were free to open a shop on the rue keep his man, begins to calculate on a Saint-Jacques, the buyer of a manuscript different basis. . . . would be no less its true owner and, as If I make a bad bargain, that is my own such, a citizen protected by the law, and affair. I was not forced to do so. I en- the counterfeiter would be no less a thief dured the common fate, and if my con- to be prosecuted to the full extent of the dition is bad, do you hope to improve it law. The more truthfully the current by depriving me of the right to alienate state of the publishing and bookselling my property and voiding my contract trades is made known, the less plausible with the buyer? Did you suppose that it will seem. . . . this man would regard the property as Here, sir, the question is not what worthless? And if he adds value to it, would be best, not what we both desire, will he not diminish my honoraria ac- but what it is within your power to do, cordingly? I do not know whom you and both of us declare in the depths of wish to injure. Talk all you like of your our souls, “Perish, perish forever those so-called love of letters, but it is litera- works that tend to make men brutish, ture that you will harm. With your mild mad, perverse, corrupt, and wicked!” administration, generous compensation, But can you prevent people from writ- distribution of honors, and every other ing? No. Well, then, neither can you pre- means imaginable, you have wooed back vent a text from being published and men of letters driven away by intoler- quickly becoming as commonplace as if ance and persecution; beware of driving you had tacitly permitted it–as well as them away a second time. Your enemy far more sought after, sold, and read. prays that you succumb to frenzy, take Line all your borders with soldiers, sir, up an iron rod, and, by committing im- arm them with bayonets to repel any prudent act after imprudent act, drive dangerous book that may appear, and into his arms the small number of men those books will–pardon the expres- of letters whose allegiance to you he sion–pass between their legs or jump envies. They will go, I warn you, but over their heads to reach us. I beg you to more powerful warning than I can give name one such dangerous work, one can be seen in the advantageous propos- such banned book, that was not clandes- als they receive and still have the courage tinely printed either abroad or in the to reject. . . . kingdom and that did not within four
Dædalus Spring 2002 55 Denis months become as widely available as stimulates the curiosity to read it, the Diderot on intellectual any book to which the privilège was greater the number of buyers, and the property granted. What book is more contrary to more widely it is read. How many books good morals, to religion, to convention- that became known when they were al ideas of philosophy and administra- condemned would have been forgotten tion, in a word, to all vulgar prejudices, on account of their mediocrity? Had and, consequently, more dangerous, they but dared, how many times would than Les Lettres persanes? Is there any- the seller and author of a work granted thing worse? Yet there are a hundred the privilège have begged the authorities, editions of Les Lettres persanes, and there “Sirs, a favor, please: a mere edict sen- is not a single student of the Quatre tencing me to be lashed and burned at Nations who can’t ½nd a copy on the the bottom of the courthouse steps”? quay for twelve sous. . . . Whenever a judgment is proclaimed What does [censorship] mean? That against a book, printers say, “Good, we have neither more nor less of these another edition!”. . . works than we would otherwise, but Things are quite different in London, have paid foreigners a sum for their where there are neither privilèges nor cen- handiwork that a more indulgent magis- sors. An author brings his work to a trate and better policy would have printer, he prints it, and the book spared us, and we have been left to the appears. If the work is so daring as to mercy of hawkers who, exploiting the merit public animadversion, the magis- doubling and redoubling of curiosity due trate summons the printer, who either to the ban, have made us pay dearly for stands mute or names the author. If he the real or supposed peril they hastened stands mute, he is prosecuted; if he to make available to us. . . . names the author, the author is prose- If you grant tacit permission to publish cuted. I should be quite upset if such a a daring work, at least you put yourself regime were established here; we would in a position to control its distribution, soon be far too well-behaved. In any and you quell the initial sensation. I case, if it is important to maintain the know a hundred works that passed away regulations governing corporations as without a fuss because a judge’s indul- the quid pro quo granted to certain citi- gence avoided the furor that a more zens by the government for the special severe attitude would not have failed to taxes it imposes on them . . . I can . . . generate. . . . denounce one abuse that is increasing I will not deal with the question of daily to the detriment of the booksellers’ whether these dangerous books are as guild and commerce: I speak of the host dangerous as some people proclaim; of men without learning, credentials, or whether lies and sophisms are not soon- profession who participate in the trade er or later recognized and dismissed; with unprecedented publicity. Sheltered and whether the truth, which can never by protections they have created for be stifled–spreading as it does little by themselves and occupying privileged little, imperceptibly gaining the ascen- places of asylum, they buy, sell, counter- dancy over prejudice, and winning gen- feit, and resell counterfeits printed both eral acceptance only after a surprising here and abroad and in these various lapse of time–can ever be a real danger. ways do harm to the trade without the What I do see, however, is that the slightest worry about the severity of the harsher the proscription, the more it laws. raises the price of the book, the more it 56 Dædalus Spring 2002 The Marquis de Condorcet
Fragments concerning freedom of the press
Excerpts selected and translated by Arthur Goldhammer
Does a man have the right to prevent Had there been no privilèges en librairie,1 another man from writing the same Bacon would nevertheless have taught things that he himself wrote ½rst? That the road to truth in the sciences; Kepler, is the question to be resolved. Indeed, Galileo, Huyghens, and Descartes would one feels that there can be no relation nevertheless have made their discover- between the ownership of a work and ies; Newton would nevertheless have that of a ½eld which a man can cultivate, discovered his system of the world; M. or a piece of furniture that can be used d’Alembert would nevertheless have by only one person, the exclusive owner- solved the problem of the precession of ship of which is consequently based on the equinoxes. the nature of the thing. Such a property The discovery of the circulation of is not derived from the natural order and the blood and of irritability and the suc- defended by social force; it is a property cessful researches of men like Stahl, founded by society itself. It is not a true Bergman, Scheele, and Priestley were right, but a privilège, like the exclusive not the fruit of privilèges en librairie. In enjoyment of anything that can be taken other domains, the works that have con- from its sole possessor without violence. tributed most to the progress of enlight- Every privilège is therefore a constraint enment–the Encyclopédie, the works of imposed on freedom, a restriction of the Montesquieu, Voltaire, and Rousseau– rights of other citizens. In this particular did not enjoy the advantages of the priv- case, the privilège is harmful not only to ilège. the rights of others who wish to copy A man of genius does not write books [the protected literary work] but also to for money, but if he is not wealthy, and all who wish to have copies, for whom anything that increases the price thereof 1 For an illuminating discussion of this term of is an injustice. Does the public interest art, see Roger Chartier’s article in this issue. require men to make this sacri½ce? That Broadly speaking, a privilège en librairie or priv- is the question that must be examined; ilège de librairie was an exclusive right to publish and sell a literary work granted by the royal in other words, are privilèges necessary administration in France, speci½cally the Direc- and useful, or are they harmful, to the tion de la Librairie, or Directorate of the Book progress of enlightenment? Trade, for a limited period of time.
Dædalus Spring 2002 57 The his books bring him no income, he will I can, if I like, publish a solution to the Marquis de Condorcet be obliged to ½nd an occupation in order problem of the precession of equinoxes, on to live, and the public will thereby suffer set forth a general principle of mechan- intellectual a loss. ics, etc., etc. The author of these great property The privilège is not necessary for that and useful discoveries will have no cause purpose, however. A subscription can for complaint: the glory will remain his. replace it, and all other advantages But if I take it in mind to publish an epi- besides. In any case, the original edition, thalamium without the author’s con- prepared under the eyes of the author, sent, I commit an offense. will always be preferred not only if the Finally, in this as in any other domain, price is the same but even with a differ- privilèges have the disadvantage of dimin- ence in price suf½cient to compensate ishing activity, concentrating it in a few the author. It will have the advantage of hands, imposing a substantial tax on it, primacy as well as exactitude. Counter- and making products manufactured in feits are common only because the prices this country inferior to those manufac- of original editions are exorbitant, and tured abroad. this is itself a consequence of privilèges. Hence they are not necessary, not even A book that can circulate freely and useful, and we have already seen that that does not sell at a third above its they are unjust. price will almost never be counterfeited. These, then, are our ideas concerning a In this as in any other realm, freedom chapter of the law that is more impor- has the effect of reducing each item to its tant than is commonly recognized. The natural price and each person to his nat- happiness of human beings depends in ural right. part on their enlightenment, and the Another observation that also needs to progress of enlightenment depends in be made is that privilèges are needed only part on the laws governing the press. for frivolous objects, unless expanded to Even if those laws had no influence on a degree where they become ridiculous the discovery of useful truths, they and no one would dare defend them. would have a prodigious influence on Indeed, let us assume that a book is the diffusion of those truths. They are useful; what makes it so is the truths it one of the inevitable causes of the differ- contains. Now, the privilège granted to ence that exists between the opinions of the author does not extend so far as to enlightened men, those of the public, prevent another person from expound- and the opinions of the people who hold ing those same truths, to order them of½ce. All the bold opinions have been more intelligibly or offer better proofs, stated and restated for years. Not one to develop them further or extend their can be cited that was not already ad- consequences. Hence, the author of this vanced by authors of the seventeenth useful book really has no privilège. century and only lately revived; most Privilèges therefore exist only for ex- useful truths are ignored. pressions, for sentences, not for sub- The history of harsh regulation of stance or ideas. They exist for the au- books should in itself be enough to dis- thor’s words, for his name. Thus their suade anyone from attempting it. purpose is not to protect the prize the The ½rst man persecuted for a suppos- inventor deserves for his useful discover- edly impious work was Aristotle. Tiber- ies but to enable him to command a ius was the ½rst to persecute a historian higher price for his pleasant turns of and order that his books be burned. His phrase. intention was not to brand the work 58 Dædalus Spring 2002 with a mark of infamy but to destroy it. because he did not believe in the pope, Fragments concerning Such hopes could be entertained prior to and reduced to misery in Holland for freedom of the invention of the printing press. having praised the popes; Fontenelle the press Nowadays, books are burned merely for threatened with persecution if he dared ceremony, which is maintained out of to respond to a Jesuit by taking issue habit, although people have also been in with the view that God, the better to the habit of mocking such ceremonies deceive mankind, had endowed the devil for the past two centuries. with the gift of prophecy; Gianone end- It was Francis I who established cen- ing in exile a life devoted to defending sorship in France, before his mistresses his country’s rights; Rousseau con- had solidi½ed his faith in the true reli- demned in Paris and Geneva for a book gion. Annoyed by complaints from the printed in Holland; Montesquieu Sorbonne against several men of letters obliged to have L’Esprit des lois printed he liked, who were accused of Lutheran- outside his own country; Voltaire barely ism, he forbade the doctors to print any- ½nding security in his old age and glory, thing without permission, on the obtaining asylum in the farthest reaches grounds that their fanatical books could of France only with the greatest of cause trouble in the state. Thus censor- dif½culty; the marquis de Mirabeau ship was initially directed against theo- deprived of his freedom for having spo- logians. ken with too little respect of the salt tax Later, one saw the countries of the and the tax on excessive drink; a citizen Inquisition plunged into ignorance of all exiled for daring to express a heretical the sciences and left in possession of opinion about free trade in cattle; the only the crudest arts, inept in the arts of author of La Philosophie de la nature sub- war and navigation as well as politics jected to criminal prosecution for and commerce. In Italy itself, the coun- preaching God and morality in a style try to which the rest of Europe owes its unknown in the lofts of the convulsion- enlightenment, one saw, shortly before naires;2 the author of L’Histoire the invention of the printing press, the philosophique du commerce (Raynal) con- sciences reduced to the most tenuous demned though no one had deigned to asylum in Florence, Venice, and Milan. determine whether or not he was guilty. One saw Galileo forced to beg pardon In short, with the exception of a few for having discovered or demonstrated poets, who were only poets and nothing great truths; one saw entire volumes else, it is impossible to ½nd, in countries ½lled with the catalog of books forbid- where the press is not free, any celebrat- den by the pope, and all the good books, ed man who was not subject to persecu- especially those establishing the rights of tion of some kind. men and sovereigns, were on that list. One saw Descartes leaving his homeland 2 The convulsionnaires were an eighteenth-cen- to escape the persecution of the priests, tury sect of fanatical Jansenists prone to ½ts of and then obliged to flee again to avoid uncontrollable shaking when dancing around persecution by Protestant ministers and the grave of Deacon Pâris in the Saint-Médard to seek repose in Christina’s palace. One cemetery in Paris. saw Bayle forced to leave his country
Dædalus Spring 2002 59 Roger Chartier
Property & privilege in the republic of letters
Translated by Arthur Goldhammer
In the fall of 1763, Denis Diderot, the Antoine Gabriel de Sartine, at the time French philosophe then in the midst of lieutenant général de police in Paris, and compiling his famous Encyclopedia, draft- also “Director of the Book Trade” in ed a brief to which he gave several suc- France. cessive titles. In preparing a fair copy of A few years later, Diderot summed up the manuscript in early 1764, he correct- this work as “a piece on the freedom of ed the original title, “Letter on the Book the press, in which I discuss the history Trade,” to “Historical and Political Let- of regulations pertaining to the book ter Addressed to a Magistrate Concern- trade, the circumstances in which they ing the Book Trade, Its Former and Pre- developed, which ones should be pre- sent State, Its Regulations, Its Privileges, served and which eliminated.” With Tacit Permissions, Censors, Hawkers, these words–“freedom of the press”– Bookstalls on Bridges, and Other Mat- Diderot indicated what for him was the ters Pertaining to Literary Regulation.” fundamental significance of an essay As the title indicates, Diderot directed ostensibly about nothing more than the his brief to a “magistrate,” namely, regulation of literary commerce.1
1 Diderot’s brief was partially reprinted in Roger Chartier, Directeur d’Études at the École Diderot, Sur la liberté de la presse, edited with des Hautes Études en Sciences Sociales (Paris) introduction and notes by Jacques Proust and Annenberg Visiting Professor in History at (Paris: Editions Sociales, 1964), and fully the University of Pennsylvania, has written exten- reprinted in Diderot, Oeuvres complètes, vol. 8, Encyclopédie IV et Lettre sur le commerce de la sively on the relationship between the material his- librairie, critical and annotated edition present- tory of institutions and the embodied practices ed by John Lough and Jacques Proust (Paris: that both animate and survive these institutions, Hermann, 1976), 465–567. It is available on the in particular early modern techniques of reading, web site of the Association des Bibliophiles disseminating, and collecting printed information. Universels,
60 Dædalus Spring 2002 His text was rich with ironies and impossible to imagine a hypothetical Property & privilege in paradoxes. Addressing the official in case in which a tacit permission would the republic charge of banning books in France, have to be refused,” since the authors of of letters Diderot sought to show that banning “infamous works” would certainly not books was ineffective. Censorship not venture to request authorization of any only failed to keep the banned books out kind, tacit or otherwise. To establish the of circulation, but actually encouraged freedom to print within the regime of their sale. It was also ruinous for French monarchical censorship, indeed with its trade, since foreign booksellers reaped assistance–that was the first paradoxi- the rewards of publishing banned titles cal aspect of Diderot’s brief. and smuggling them into France. As It was not the only one. The “Letter” Diderot described the situation, the was in fact a commissioned work, which needs of commerce and the search for Diderot was asked to write on behalf of truth paradoxically converged. the Communauté des Libraires Pari- To guarantee a prosperous book trade siens, or Guild of Parisian Booksellers, through “freedom of the press” in by its syndic, Le Breton, the principal France, Diderot thought that it was not publisher of the Encyclopedia. necessary to abolish prior censorship The Paris booksellers were worried altogether, even if the English example about the possible elimination of so- might inspire such action (“I should be called privilèges de librairie, through which quite upset if such a regime were estab- the monarchy in the past had granted lished here,” Diderot writes sardonical- booksellers an exclusive and renewable ly; “We would soon be far too well- right to publish works acquired from behaved”). It was enough to “issue an their authors. They were greatly alarmed unlimited number of tacit permis- by a decision of the King’s Council in sions”–that is, to use a mechanism that 1761 granting the privilège for the publica- already existed in France and that had in tion of the Fables of La Fontaine not to a fact been invented by the Directorate of bookseller, but rather to the descendants the Book Trade as a means to soften the of the author, thereby abrogating the state’s regime of censorship. Tacit per- rights of booksellers who had obtained missions, at first purely verbal, but later that privilège in the past (or might wish to registered as if the books involved were do so in the future). Worried that the foreign works being authorized for sale council decision “undermined the very in France, differed from public permis- foundation of the booksellers’ estate,” sions in that they did not imply approval the booksellers commissioned Diderot by the chancellor. Tacit permissions to write a brief in defense of their cus- were instituted to allow works to be tomary privileges. printed in France that could not be His willingness to accept this commis- approved officially yet were not danger- sion might seem surprising. To begin ous enough to be prohibited and thus with, his relations with the booksellers left to foreign booksellers. of Paris were far from felicitous. With In Diderot’s conception, issuing an each contract he signed with the pub- unlimited number of tacit permissions lishers of the Encyclopedia (in 1747, 1754, thus became the preferred instrument 1759, and 1762), it was an uphill battle to whereby booksellers, in concert with win the slightest concession on terms enlightened writers, could dismantle from publishers who treated him as a prior censorship. In fact, “it is almost salaried employee. Privately, Diderot
Dædalus Spring 2002 61 Roger called his publishers “my pirates” (mes First, the privilège has to be de½ned not Chartier on corsaires).2 as a royal favor that can be granted, intellectual property In 1764, relations grew even worse refused, or revoked by the sovereign at when he found out that Le Breton–the will, but rather as the “guarantee” or very man who had commissioned “safeguard” of a private contract where- Diderot’s letter to Sartine!–had secretly by the author freely cedes to the book- tampered with certain articles in the seller his right to his manuscript. The Encyclopedia after the proofs had been property right acquired by the book- corrected. What is more, one scarcely seller is similar to that obtained by the expects a determined adversary of cor- buyer of a piece of land or a house. It is porations and monopolies such as perpetual, irrevocable, and transmissible Diderot to defend the need for privilèges and cannot be transferred or shared of any sort. without the agreement of the person From the start of his brief, Diderot who holds it. Such a property right does expresses a keen awareness that his com- no harm to either the general interest or mission puts him in a paradoxical posi- the progress of knowledge because it tion: concerns only speci½c titles. Since it establishes no monopoly over “books in I shall begin by saying that the question general” or “books on a particular sub- here is not simply one of the interests of a ject,” it leaves open the possibility of guild. What does it matter to me if there is publishing “unlimited” numbers of one guild more or less? Can this possibly works on any given topic. concern me, one of the most zealous pro- Diderot’s plea on behalf of the privilège ponents of liberty in the broadest sense . . . de librairie subverts the traditional under- who has always been convinced that cor- standing of these privileges. His essay porations were unjust and catastrophic, reduces the privilège to nothing more and who would look upon their utter and than the of½cial sanction of a contract. It absolute abolition as a step toward wiser thus becomes a title of ownership, and as government? such it must be respected by the public Why, then, defend the traditional claims authorities because it constitutes one of of the guild of booksellers, who were the fundamental rights of all “citizens.” asking not only that privilèges de librairie Only a tyrant would dare con½scate the be maintained, but also that their renew- property of private individuals, thereby al be made automatic and, ultimately, reducing them to the condition of that they be granted in perpetuity? “serfs.” The answer Diderot gives in a few By subsuming the privilège under the words: “I repeat, either the author is logic of contract, Diderot is implicitly master of his work or no one in society is dissociating the bookseller’s title of master of his property. The bookseller ownership from the corporate regula- owns the work as the author owned it.” tions that had traditionally governed the Diderot’s goal, then, is to show that book trade. Those regulations could dis- the irrevocability of the privilège de appear without abrogating the property librairie is the basis of all literary proper- rights of the bookseller: ty. There are several steps to the argu- The prejudice comes from confusing . . . ment. the community of booksellers . . . with the 2 Jacques Proust, Diderot et l’Encyclopédie (Paris: privilège and the privilège with the title of Armand Colin, 1967), 81–116. ownership, all things which have nothing
62 Dædalus Spring 2002 in common–no, sir, nothing! So, then, their rights to others by sale, bequest, or Property & destroy all communities, restore to all citi- privilege in abandonment.” the republic zens the freedom to use their faculties as Turning from history to administra- of letters their tastes and interests dictate, abolish tion, Diderot argued that maintaining all privileges, including those of the book- permanent privilèges was indispensable to seller–I grant you this; all will be well, so the printing and bookselling trades. To long as the laws pertaining to contracts of prove this, he listed the disastrous ef- purchase and sale subsist. fects that would follow if “general com- petition” were to be allowed in publish- Diderot thus demonstrated the futility of ing; that is, if privilèges were turned into the very institutions (the privilèges and mere permissions without any exclusivi- the guild of Parisian booksellers and ty clause. Booksellers would see a sharp printers) that he had been commis- decline in their pro½ts, because several sioned to defend tooth and nail. editions of the same title would compete To bolster his argument, Diderot for a share of the market. What had been recounted the history of printing in “a pro½table work for the exclusive own- France. The underlying thread of his er would then become absolutely worth- narrative is the constant expansion of less to him and others,” and no book- exclusive privileges, which were ½rst seller would want to publish important established in the sixteenth century to works too costly to be remunerative in protect enterprising publishers from the slow market resulting from compet- counterfeits by dishonest competitors. ing editions. Only works of high circula- At ½rst these privileges were issued for a tion would survive, and the drive to pub- limited period of time. But later they lish them at the lowest possible cost were extended to protect the sales of edi- would ruin all the bookmaking arts, be- tions that had not sold out their entire cause these works would become “very print run, and also to protect not just common” and “wretched with respect to new editions of old works, but new typesetting, paper, and proofreading.” works by living authors. Thus an equiva- Businesses related to bookmaking (font lence was established between the per- foundries, paper mills) would collapse, petual property of the bookseller, ac- and, “what is worse, as these arts wither quired through the contract with the [in France], they will flourish abroad, author, and the perpetuity of the and foreigners will be quick to supply us privilège, made possible by successive with the only good editions that will renewals. exist of our authors.” Rewriting the history of royal privilèges Applying strict mercantilist logic, in his own manner by making royal Diderot argued that the state itself favor subject to the regime of contract, would ultimately become the victim of Diderot suggests that the case he is such a process: attempting to make to the Director of the Book Trade is the natural culmina- A little more persecution and disorder and tion of a historical process: “So it was booksellers will seek suppliers abroad that the grant of privilèges became ½xed, commensurate with their rate of sales. with the owners of manuscripts Because this would eliminate the risk of acquired from authors obtaining a per- losing sums advanced to cover manufac- mission to publish whose continuation turing costs, what could be more pru- they could solicit as often as it suited dent? But the state will become poorer their interest to do so and transmitting owing to the loss of workers and the fall in
Dædalus Spring 2002 63 Roger prices paid for raw materials grown at of the sovereign, in the form of pen- Chartier on home, and you will be sending out of the sions, subsidies, or employments. But intellectual property country the gold and silver that your own such compensations were necessarily territory fails to yield. limited, and they were not always intelli- gently distributed. For those who But the subject closest to Diderot’s embarked on a literary career, the only heart was clearly the effects of the priv- recourse was to draw their subsistence ilège on “the condition of the literary from the value of their writing when man.” Men of letters are necessarily tied they signed their contract with a book- to booksellers, for it is entirely illusory seller. for an author to think of publishing his Diderot’s text evokes a new image of own works. Diderot speaks from experi- the man of letters: the writer who tries ence: to live by his pen. In discussing equitable I have come close to practicing both pro- payment for manuscripts, Diderot fessions, bookseller as well as author; I sketches the mediocre but acceptable have written, and I have on several occa- existence in store for the literary man sions printed works on my own account; without formal status or patron. With a and I can assure you in passing that noth- decent remuneration, “one might not ing accords less well with the active life of get rich but would be able to live com- the businessman than the sedentary life of fortably if the sums were not spread out the man of letters. Incapable as we are of over many years, did not slowly evapo- an endless round of petty chores, out of a rate, and were not long gone by the time hundred authors who would like to retail age arrived, needs increased, the eyes their own works, ninety-nine would suffer gave out, and the spirit was exhausted.” and be disgusted by it. Still, if authors were to receive a fair payment, the bookseller had to be as- The author who wished to publish him- sured of “tranquil and permanent pos- self would in fact have to contract with session of the works he acquires.” That booksellers to sell books printed at his is why Diderot had agreed to accept the own expense–a risky proposition. Book- commission from the Paris booksellers. sellers are therefore unavoidable, as Did- He grasped the fact that the organization erot had learned at some cost to himself. of the book trade in the old corporatist Authors, obliged to sell their manu- society meant that the independence (at scripts to people who would publish least in a relative sense) of the writer them, had only one hope: that their con- depended on the existence of renewable tracts would be as fair as possible. As and irrevocable privilèges: Diderot saw it, only full recognition of the writer’s property rights to his “prod- Abolish these laws, force the insecure uct” and full assurance of the book- acquirer to give up ownership, and the seller’s security through grant of perpet- consequences of this poorly conceived ual privilège could guarantee that a just policy will be borne in part by the author. price would be paid for the work sold by What bene½t will I derive from my work, the former and acquired by the latter. To especially if my reputation is not yet be sure, for authors unable to live on the secure, if, as I suppose, the bookseller is income from their property or the emol- afraid that a competitor–who has risked uments of their position, literary activity nothing to try out my talent, advanced could ideally be divorced from remuner- nothing for a ½rst edition, and paid me no ation of any kind through the generosity honorarium–will instantly reap the
64 Dædalus Spring 2002 bene½ts of acquiring it at the end of six one that Diderot ultimately gave to his Property & years, or sooner if he dares? privilege in “piece,” the text calls into question one the republic after another of the principles that (Diderot is here taking six years as the of letters Diderot had avowed. average term of a privilège without Whereas Diderot based his argument renewal.) on the idea that literary property is iden- The booksellers who commissioned tical to other forms of real property, Diderot’s brief were predictably unhap- Condorcet radically rejected this notion: py with it. They submitted it to Sartine “One feels that there can be no relation in March of 1764 only after revising it between the ownership of a work and substantially, and giving it a new title: that of a ½eld which a man can cultivate, “Representations and Observations in or a piece of furniture that can be used the Form of a Brief on the Former and by only one person, the exclusive owner- Present State of the Book Trade, and ship of which is consequently based on Particularly on the Ownership of the nature of the thing.” Literary proper- Privilèges.” This new title is indicative of ty is of a different order: “It is not a right the gap between Diderot’s most basic but a privilege,” and, like all privileges, intentions–to plead for freedom of the harmful to the “public interest,” because press and establish the property rights of it is “a constraint imposed on freedom, a authors in their work–and the sole pre- restriction of the rights of other citi- occupation of the booksellers, namely, zens.” Just as a literary work cannot be to maintain the regime of privilèges and protected by an exclusive privilege, nei- obtain recognition of the perpetuity, ir- ther can it be considered a form of per- revocability, and transmissibility of their sonal property. Enlightenment must property. Drastically revised by its pub- progress, and for that to happen every- lishers (as some articles of the Encyclo- one must be free to compose, improve, pedia had been), Diderot’s “Letter” reproduce, and diffuse generally useful would not be published in its original truths. Such truths can in no way be sub- form until 1861. ject to appropriation by an individual. Thirteen years after Diderot composed For Diderot, every work is the legiti- his brief, in 1776, Condorcet, probably mate property of its author because a writing in support of Turgot’s decision work of literature is the irreducibly sin- in February of that year to abolish all gular expression of that author’s communautés des arts et métiers (guilds in thoughts and feelings. As he put it in his the arts and crafts),3 drafted a pamphlet brief, entitled “Fragments Concerning the Freedom of the Press.”4 Although the What property can a man own if a work of title has something in common with the the mind–the unique fruit of his upbring- ing, his studies, his evenings, his age, his 3 On this abolition, see Steven L. Kaplan, La Fin researches, his observations; if his ½nest des corporations (Paris: Fayard, 2001). hours, the most beautiful moments of his 4 The complete text of Fragments sur la liberté life; if his own thoughts, the feelings of de la presse can be found in Marie-Jean-Antoine his heart, the most precious part of him- Caritat, marquis de Condorcet, Oeuvres com- self, that which does not perish, which plètes, vol. 11 (Paris, 1847), 257–314. On these “Fragments,” see Carla Hesse, “Enlightenment makes him immortal–does not belong to Epistemology and the Laws of Authorship in him? Revolutionary France, 1777–1793,” Representa- tions 30 (1990): 109–138.
Dædalus Spring 2002 65 Roger For Condorcet, in stark contrast, that accepts, existing institutions (guilds, Chartier on which forms the illegitimate basis of privilèges de librairie, tacit permissions) intellectual property property and privilege–namely, “ex- even though he dislikes them, not only pressions,” “sentences,” “words,” “plea- because he is writing on assignment but sant turns of phrase”–is without impor- also because he believes that they can be tance compared to ideas and principles invested with new content: the privilège that belong to the realm of universal de librairie is defended in the name of lit- truths. erary property, and tacit permissions are Condorcet is well aware of the danger regarded as a guarantee of freedom of that such a position involves for anyone the press. Writing thirteen years later, at whose existence depends on income a time when Turgot’s brand of liberalism derived from the sale of his work: “A reigned triumphant, Condorcet refused man of genius does not write books for such precautions and compromises: all money, but if he is not wealthy, and his privileges must be abolished because the books bring him no income, he will be progress of enlightenment demanded obliged to ½nd an occupation in order to that truths be freely exposed and univer- live, and the public will lose thereby.” sally shared. But for him two facts will limit such a As for the property rights of authors to risk. First, freedom of the press, by low- their works, the consequences of these ering the price of books, will ensure the differences are radical. For Diderot, the greatest possible sale of the original edi- author’s ownership of his work is a legit- tion, “prepared under the eyes of the imate and inalienable right–inalienable, author,” and discourage others from that is, except by the author himself. For publishing competing editions of the Condorcet, the very idea of a private same text. Authors will therefore receive property right to ideas is a claim con- a just price for their works, the pro½ts on trary to the general interest. which will no longer be threatened by Not only does this difference reflect counterfeits. two incompatible de½nitions of a “liter- Second, the writer’s condition may ary work”–for Diderot, the expression even improve if generalization of the of a singular genius; for Condorcet, a subscription system allows the book- vehicle of universal truths–it also re- seller to amass the capital needed for a flects the two men’s very different rela- future edition and makes it possible for tions with the world of publishing. The authors to be paid even before their writer who lived by his pen had little in works are completed. common with the marquis who lived on The differences between Diderot’s his rentes, other than the fact that both brief and Condorcet’s pamphlet are sub- men’s texts would inspire revolutionary stantial. They are due in part to the dif- assemblies to draft ambiguous legisla- ferent contexts in which they were writ- tion that would attempt to reconcile ten and the different reasons for their their incompatible theses. writing. Diderot defends, or at any rate
66 Dædalus Spring 2002 Adrian Johns
Pop music pirate hunters
It is the beginning of a new century, tiously freedom-loving. They call them- and the music industry is facing a crisis. selves things like the People’s Music New technology and innovative business Publishing Company, and sell at prices practices are challenging the copyright anyone can afford. They are, they claim, principles that have underpinned the in- bringing music to a vast public other- dustry for as long as anyone can remem- wise entirely unserved. Many of them ber. are not businesses on the traditional Taking advantage of a revolutionary model at all, but homespun affairs process that allows for exact copying, staffed by teenagers and run out of bed- “pirates” are replicating songs at a rooms and even pubs. tremendous rate–on the order of a mil- In reaction, the established industry lion copies a year. The public sees noth- giants band together to lobby the gov- ing wrong in doing business with them. ernment for a radical strengthening of Their publicity, after all, speaks of an copyright law–one that many see as orthodox music industry that is monop- threatening to civil liberties and princi- olistic, exploitative of artist and public ples of privacy. And in the meantime alike, and devoted to the production of they resort to underhand tactics to take shallow commercial tat. on the pirates. They are forced to such The pirates, by contrast, are ostenta- lengths, they say, because the crisis of piracy calls the very existence of a music industry into question. Adrian Johns is an associate professor in the Sound familiar? If so, it is not because Department of History and in the Committee on this is a description of the troubles fac- Conceptual and Historical Studies of Science at ing today’s entertainment goliaths as the University of Chicago. He is the author of they confront libertarian upstarts like “The Nature of the Book: Print and Knowledge Napster and MP3.com. In fact, this was in the Making” (1998), a prize-winning study of the roiling battleground of music pub- the rise of print culture in early modern England. lishing in the earliest years of the twenti- Educated in Britain at the University of Cam- eth century, not the twenty-½rst. In bridge, Johns is currently working on a history of those years the industry faced a piratical intellectual piracy from the invention of printing threat more serious than any before to the Internet. or–until recently–since. How that threat materialized, how it flourished, © 2002 by Adrian Johns
Dædalus Spring 2002 67 Adrian and how the industry fought back com- an original. Gone were the typographical Johns on intellectual prise a story with no little relevance for errors of earlier pirated versions of sheet property today’s highly charged situation. music; it often took an expert to tell a reproduction from the original. At the beginning of the twentieth cen- The second crucial development was tury the music industry was premised on the late-Victorian appearance of “piano the sale of printed sheet music. The pub- mania.” As middle- and lower-class lishers producing such music did so on a incomes rose, money became available truly enormous scale. Perhaps twenty for leisure, and in the last quarter of the million copies a year were printed in nineteenth century a number of novel Britain alone, and the best-known pieces ways of spending it came into being. sold in the hundreds of thousands. Most Pianos were among the most notable. of the businesses dominating this ½eld Suddenly every aspiring family wanted were family ½rms committed to uphold- what one commentator called “that ing traditional standards of taste and highly respectablising piece of furni- aesthetic value. Not just concerned to ture.” The social character of music exploit the value of “dots” (as musical changed radically as professional virtu- notation was termed), they proudly nur- osity diverged from, and increasingly tured personal as well as professional disdained, a burgeoning realm of ama- relationships with artists such as Stan- teurs trained by an equally burgeon- ford and Elgar. Most of their sales were ing–and utterly unregulated–crowd of of a relatively small number of wildly “professors.” By 1910 there was one successful songs, which, as they were piano for every ten people in Great fond of pointing out, cross-subsidized Britain. the many that were only modestly suc- Where pianos went, piano music had cessful or that failed outright. The de- to follow. The result was a huge new tails of pricing, however, were regarded demand among middle- and lower-class as con½dential, and this encouraged amateurs for sheet music–the cheaper rumors that the ½rms acted in concert to the better.2 keep them arti½cially high. They actually sold songs at about a shilling and four- Music piracy had long existed, of pence each, which does not seem exorbi- course. Indeed, until the 1770s music was tant–unless you knew that a pirate conventionally regarded as lying beyond would sell you the same song for the purview of copyright altogether, so twopence.1 publishers sold unauthorized reprints Two profound changes made such freely.3 By the late nineteenth century, piracy possible, one of them technologi- legislation had eliminated that kind of cal, the other cultural. freedom. But the new mass market The ½rst was the development of pho- transformed the nature and implications tolithography. This allowed pirates for of piracy, making such laws practically the ½rst time to reproduce what was for moot. The implications extended from all intents and purposes an exact copy of 2 Cyril Ehrlich, The Piano: A History, rev. ed. (Oxford: Clarendon Press, 1990), 88–107. 1 D. W. Krummel, “Music Publishing,” in N. Temperley, ed., Music in Britain: The Romantic 3 David Hunter, “Music Copyright in Britain to Age, 1800–1914 (London: Athlone, 1981), 46–59. 1800,” Music and Letters 67 (1986): 269–282.
68 Dædalus Spring 2002 music-hall songs to works by Massenet, apprehended tended to disappear before Pop music pirate Sullivan, Gounod, and Mascagni. In the hearings, or else to claim poverty. There hunters early 1900s, pirates copied any music was no power to impose ½nes. that was genuinely popular, be it a While all this was not a great problem Puccini aria or a Sousa march. for book publishers, since a book repre- But if it was a mass market that drove sented a relatively substantial capital piracy, what made it almost respectable investment and its seizure was conse- was a widespread sense of resentment quently a serious matter for the pirate, within musical circles. The music pub- for music publishers it was utterly in- lishing companies, represented as a suf½cient. Each title amounted to only a group by the Music Publishers Associa- sheet or two, and pirates freely allowed tion (mpa), had encountered growing them to be seized en masse. The publisher complaints from all sides. In 1899, a new would then ½nd the pirate back on the association was formed to publish music streets within hours, clutching fresh on behalf of composers themselves. It bundles of stock. No wonder, then, that aimed to give its members “the full some among the publishers came to the bene½t of any ½nancial reward” from conclusion that they needed to go be- their efforts, in contrast to the music yond the law. publishers’ practice of absorbing “nearly all the ½nancial bene½ts.” On the other side of the industry, retailers too com- In January of 1902, the publisher David plained–about high prices, trade secre- Day, of Francis, Day & Hunter, resolved cy about the setting of those prices, and to act. Day was already known for his publishers supplying material to rivals at hard line against piracy: in 1897 he had preferential rates. There was, then, a been described as “the mildest man- ready audience for the argument that the nered man that ever cut the throat (so to world of music publishing needed shak- speak) or scuttled the ship of the pirati- ing up. cal song printer.” But what he planned The problem facing the music publish- now was far more risky than any strategy ers was not one of legal principle. The previously undertaken. dif½culty lay in enforcing the law. Al- Hiring the services of a detective though copyright violation, be it of agency, he mounted his own raid on a books or sheet music, was illegal in piratical warehouse. The raid was almost Great Britain, it was a civil offense, not a certainly illegal, but the amazed occu- criminal one. This meant that tracking pants offered no resistance. Day walked down perpetrators was largely a matter off with ½ve hundred copies of pirated for their victims. They had the right to sheet music. He and his men then moved search for copies, but not to enter pri- to “attack” a north London cottage vate premises to do so–unless the pi- where hawkers gathered to pick up pi- rates themselves admitted them, which rated copies. Pretending to be hawkers was, obviously, unlikely. And even if themselves, they seized ½fteen thousand they did succeed in getting hold of pi- copies more. An unfortunate barrow boy rated music, the most they could hope yielded another four thousand. Yet for was the destruction of their haul. another eight thousand came from a Any award of costs was likely to prove hawker’s house, twenty thousand from futile, since the hawkers and hacks they chambers in the City. Cock-a-hoop, Day
Dædalus Spring 2002 69 Adrian sat back and waited to see what the now began in earnest. Hawkers were Johns on 4 intellectual pirates would do. confronted on the streets, distributors property What they did, as it turned out, was challenged in their premises and pubs, nothing. Day had got away with it. Word and printers raided in their cellars and of the victory then spread fast. An garrets. Agents seized copies numbering anonymous “antipirate” spelled out a in the hundreds of thousands. plan: that the publishers should system- Such vast numbers demanded atten- atically recruit “commandos” modeled tion, and in response Parliament passed on Day’s raiding party, each comprising a new musical copyright law. It came twenty or so men ready to target mar- into force in October of 1902. Intended kets in London and beyond. It was a to strengthen Abbott’s hand, the new grimly appropriate word, coming as it law permitted the police, on being given did from South Africa, since many of the a written request by a victim of piracy, to songs over which the publishers and seize pirated sheets without waiting for a pirates were ½ghting were jingoistic dit- warrant. For the ½rst time, antipiracy ties for the Boer War. And before long actions would become of½cial police the leading ½rms were indeed embarking business. on such a policy. The police moved fast to put this new To that end, Day founded a new indus- power into practice. At the same time try trade association, the Musical Copy- Abbott’s agents spread out across the right Association (mca), becoming its country. The level of seizures soon rose president and plucking a junior clerk dramatically. In the following three from Francis, Day & Hunter, John Ab- months, 750,000 pieces of sheet music bott, to be secretary. Abbott found him- were stored in police stations, awaiting self charged with devising an offensive the bon½re. against the pirates–an offensive that But behind that impressive mass of would skirt the fringes of illegality, that material lay a plan that was deeply would be launched (it seems) against the flawed. For one thing, not all pirates advice of the mca’s own lawyers, and proved to be as quiescent as those that would depend for its success upon encountered by Day. Some challenged the reluctance of the pirates themselves the agents’ authority to act–an authori- to have recourse to the courts. ty that was not materially improved by Abbott went about his task with the new musical copyright law. Hawkers, alacrity. He rapidly recruited a small for example, brought assault charges army of retired policemen and others against the commandos, and sometimes with “some knowledge of the pugilistic won. Then, in August of 1902, a home- art.”5 The campaign against the pirates owning pirate found himself confronted in his doorway by half a dozen mca 4 James Coover, comp., Music Publishing, men, who pushed their way into the Copyright, and Piracy in Victorian England (Lon- house and threatened to “drop” him if don: Mansell, 1985), 84–85. Coover’s collection he resisted. Although they found three of primary source excerpts is the essential entry thousand pirated copies of sheet music, point to this story. In what follows, most of the material that does not come from Preston’s the resulting case was of assault, not scrapbook may be found in Coover, although it piracy, and the mca found itself re- has generally been checked against originals. buked. Its policy, the magistrate ruled, exceeded legal limits; it amounted to 5 John Abbott, The Story of Francis, Day & Hunter (London: Francis, Day & Hunter, 1952), 31. “organized hooliganism.” The remark
70 Dædalus Spring 2002 was to be much cited by opponents of insisted on a hearing before destruction, Pop music pirate the campaign in succeeding months. As and most hawkers disappeared without hunters such cases mounted up, it began to answering the summons. The seized appear that the whole offensive might copies thus fell into a legal limbo. Final- back½re. Assault, after all, seemed to ly, in February of 1903, four months after many to be an altogether more serious the law had gone into effect, the Metro- crime than piracy. politan Police had to suspend its en- forcement. The implication was clear: At the same time, British music lovers the new statute was an exercise in futili- expressed growing skepticism that the ty. With no power to search private publishers were acting in anyone’s inter- premises–magistrates were still ruling est but their own. Perhaps British music in favor of the pirates on this–and no would be better off with the pirates. ½ning of offenders, the pirates were Stories of composers fleeced by the scarcely being discom½ted by the sei- publishers multiplied. Retailers too saw zures. little bene½t in high prices, and the very With the campaign floundering and success of the pirates in selling vast public criticism mounting, some in the numbers of copies showed that selling trade saw a need to change tack. Day cheap could pay. Perhaps, remarked one, himself broke ranks ½rst. He found him- the crisis would compel a proper assess- self forced to announce in the Daily Mail ment of the worth of the retail network, the launch of Francis, Day & Hunter’s “now that the publisher is in his death new sixpenny music series, which would grapple with the pirates.” reissue songs at a price far more compet- Embarrassingly enough, in several itive with that of the pirates. cases pirates turned out to be ex-mpa or A direct result of the combination of mca agents who said that they had been pianos and piracy, this new series was a forced to turn pirate by the excessive radical departure for the trade. It prices charged by the legitimate publish- amounted, one songwriter said, to “an ers. “I can’t help myself,” said one such; admission of the claims made by the “the publishers charge such an enor- defenders of the pirates that publishers mous price for their copies.” Their have been robbing the public.” It was the inside knowledge had in the end only “day of cheap music at last,” hailed the helped them become better pirates. piratical Popular Music Stores of Don- But the greatest problem was that the caster. For once, “the elect in the musical seizures were proving far more incon- world must recognize the increasing venient to the police than they were desire of the masses to share in the damaging to the pirates. Pirates could re½ning pleasures of high-class music.” quickly collect or print more copies of Even the staunchly pro-publisher trade sheet music. Meanwhile, police stations journal Musical Opinion announced the were becoming warehouses for hun- coming of a “revolution” in music pub- dreds of thousands of useless pieces lishing. Meanwhile, the mca, its initial of sheet music. None of that music successes paling, fell silent. The pirates seemed to be going to the incinerators, were on the verge of winning their war. and the flow of piracies was not being staunched. The stations were simply For want of a better strategy, the pub- ½lling up with paper. lishers decided to return to what Abbott The reason for this was that the law called their “‘smash and grab’ method.”
Dædalus Spring 2002 71 Adrian With the mca more or less discredited, sumed a truism about morality and place Johns on intellectual the older trade body, the Music Publish- that had been ingrained in English soci- property ers Association (mpa), came back to the ety for well over two centuries. This was fore. And with it came the mpa’s new the conviction that the home was the agent in the ½ght against piracy, an mca fundamental site of sound morals. In the veteran named William Arthur Preston. seventeenth century, when vagrancy acts Like Abbott, Arthur Preston had been were ½rst instituted, it had been taken an employee of one of the big music for granted that secure, patriarchal publishers. In his case it was Boosey and households were the basis of a stable Company, where he had worked since society. Streets, fairs, and markets, on about 1890. But from late 1903 he en- the contrary, were notorious for their joyed effective command of antipiracy licentiousness. Laws requiring peddlers efforts on behalf of the mpa. In this to obtain licenses–laws that the pub- capacity he traveled the length and lishers now sought to exploit against breadth of Britain and Ireland, seeking sellers of pirated sheet music–were out pirates and dragging them through another reflection of this idea, the tenac- the courts. Apparently indefatigable, ity of which it would be hard to overesti- Preston single-handedly revived the mate. The reason why the 1902 act pro- publishers’ offensive, extending it to the vided no right of forced entry into hous- furthest provinces. es was that it assumed, a priori, that pira- He did so in three distinct campaigns. cy must be a street-based crime. The ½rst was a sweep across the north of The implications of existing British England and the Midlands, beginning in laws against piracy became plain to Liverpool in December of 1903. The sec- Preston in 1902, when he tried to prose- ond then concentrated on London itself cute pirates in Liverpool. In this indus- and its suburbs. The third took in the trial city, some two hundred separate south, ranging from the Medway towns songs were reputedly available as pira- in the east to Plymouth in the far west. cies, and the legitimate trade com- In addition, Preston traveled to Dublin, plained of a 60 percent decline in busi- Belfast, and Londonderry to hunt down ness. Shortly after he arrived, Preston pirates in Ireland, and even made a seized pirated sheet music from “street- detour to the Isle of Man. There can have sellers.” Next he raided a private home, been few men who saw more of the seizing seven thousand copies of pirated British Isles in 1904–1905 than Arthur music from the residence of John Preston. O’Neile at 50 Hunter Street, and causing Preston kept a remarkable scrapbook a “sensation” in the neighborhood. In recording his progress.6 This scrapbook court, however, O’Neile’s defense con- makes possible a detailed reconstruction tended that there was no evidence that of both the practice of piracy and the any of the music had actually been sold tactics he used to counter it. in the home–a point that Preston had to To understand those tactics–which concede. Since, as the defense claimed, included subterfuge to get into pirates’ “the [musical copyright] act refers to premises–we need to go back to the street trading and not to anything in a 1902 law and ask why it was such a fail- house,” O’Neile could not be found ure. The main reason was that it as- guilty simply because he had stored pirated sheet music in his home. 6 British Library, Music Library, ms. M.55. Stymied, Preston had no option but to
72 Dædalus Spring 2002 abort the prosecution. “The act is rather futility to these prosecutions, in fact the Pop music pirate weak,” his lawyer observed; “It would hawkers did change their practices as a hunters have been better to leave us alone and let result of his campaign, abandoning the us proceed under the old act.” Tellingly, thoroughfare as a place of trade. Increas- a moment after O’Neile walked, a bar- ingly they dropped printed catalogues row boy who had had far fewer pirated through houses’ mailboxes and returned sheets came before the same judge and later to deliver any desired music to the found himself punished because he had householders. The pirates later took this been operating in the street. strategy to its logical end by circulating Preston’s struggle with the pirates thus catalogues by mail, eliminating the weak came to focus on questions of place. Re- link of the street-seller altogether. sponding to Day’s commando tactics, 2) People with relatively ½xed prem- the pirates had begun to appear in courts ises were an altogether more serious and in the press as heroic defenders of matter, since they often acted as local domestic privacy, as well as upholders of centers of distribution. Generally, hawk- diversity against monopoly and defend- ers would be supplied from houses or ers of the people’s right to affordable pubs, with the actual warehouse being a songs. So Preston took care to think small distance away for security reasons. through a taxonomy of places and prac- The most notorious example was the tices that would buttress the legitimacy Rose and Crown in East London, where of his raids. distribution was managed by a man Was the location of a given raid a known as Tum Tum. This kind of home or a warehouse? Was it a place of “wholesale man,” responsible for man- sale or of storage? To what extent could aging such an operation, was a ½gure police or mpa men legitimately claim that Preston particularly wanted to access? What about a market stall: was catch. it a sacred slice of domesticity in the midst of a public square or an open 3) Preston also sought the hack print- space? ers who actually produced the piracies. These were real questions that Pres- But these were not as crucial as one ton–unlike Abbott the previous year– might suppose. They were generally, in took care to appreciate and answer. As a Preston’s much-repeated phrase, “men result, newspaper reports and the courts of straw.” Working in garrets or cellars, themselves increasingly classi½ed pirati- they exercised little control over the cal villains according to places of work. enterprise and used rented equipment so Four distinct classes of enemy took as to minimize capital losses if detected. shape. They seem to have been concentrated in London, and especially in the East End. 1) The ½rst was that of men who sold But plates could be distributed anywhere sheets “in the public streets.” These a willing worker could be found, via a were the small fry of the trade, the secretive method involving railway sta- hawkers, who often reappeared with tion cloakrooms, so printers also operat- new stock mere hours after a confronta- ed in, for example, Kensington. From tion. They rarely yielded more than ten temporary and shifting workshops they to a hundred copies at a time, and they produced copies rapidly–½ve thousand refused to betray their sources. Preston per man per day, according to one in- prosecuted large numbers of such men. former. The rail network then took them While there was inevitably a feeling of
Dædalus Spring 2002 73 Adrian across the country, to Leeds, Liverpool, because he had at one point been a Johns on intellectual Manchester, and Doncaster. There local ½shmonger). But the press and his deal- property organizers distributed them through the ers alike knew him simply as “the pirate local network of piracy, ½rst to the king.” wholesale men, then to the hawkers. The Christmas Eve raid was the ½rst of 4) But the real catch was the publish- a series of spectacular attacks over the er’s illicit doppelgänger, the pirate him- next eighteen months, which progres- self. This was the man who actually sively unveiled the extent of the pirate coordinated the whole network. He was king’s realm. Abbott himself raided a the criminal capitalist, the musical cottage in Finchley and found a printing Moriarty, the piratical patron of the arts operation with 12,000 copies of pirated who oversaw the whole enterprise while music (its overseer, John Puddefoot, never getting his own ½ngers inky. The remarked that “they do worse on the pirate alone had no predictable location, Stock Exchange every day”). Ten thou- moving from address to address at will. sand copies turned up in Hoxton. A raid He was therefore the one ½gure that in Hackney yielded nearly 240,000. Preston, Abbott, and their men had Another in the north London suburb of never managed to nab. He seemed to be, Dalston yielded over 280,000 copies, as the Shef½eld Telegraph lamented, from a warehouse rented by George “ungetatable.” For all its dynamism, Wotton on behalf of “the King of the Preston’s campaign would not be a true Pirates.” Subsequent raids across north success until it had trapped a real pirate. London and the East End resulted in fur- And on Christmas Eve, 1903, that sud- ther big hauls: 6,500 in Devons Road, denly became a possibility. 150,000 in Upper Holloway, and 160,000 in a warehouse operated by William The great Victorian railway termini of Tennent on behalf of “J. Fisher and Co.” London give rise to lines that snake out Willetts was not idle in the face of across the city atop stolid red-brick via- these setbacks. Parliament itself had ducts. It was in one of the arches be- returned to the problem of music piracy, neath such a viaduct that the greatest establishing a special committee to music pirate of the age had his head- investigate. Both Preston and Abbott quarters. For some time, John Abbott– testi½ed before it. But so too did the still pirate hunting like Preston–had pirate king himself. Willetts’s testimo- had this arch in the East End under ob- ny–given at his own insistence–was servation, in what he called “the best reported at length by the press across the Sherlock Holmes manner.” country. It was perhaps the only mo- On December 24, he launched his raid. ment in modern history when a self-pro- He discovered almost seventy-½ve thou- claimed master of the piratical trade vol- sand sheets of pirated music–ten times unteered to appear before the highest the largest of regular hauls. The batch political powers and justify his conduct. had been about to be dispatched down the Great Western Railway to the pirate Willetts’s justi½cation began from the network. And the pirate himself was position that no author or composer actually present. His name was James should be given–or, as a matter of fact, Frederick Willetts, although in his pirati- possessed–a freehold on gifts that were cal capacity he tended to use the nomme God-given for the public bene½t. de guerre John Fisher (coined, apparently, This was, in principle, uncontrover-
74 Dædalus Spring 2002 sial. For the ½rst time, however, musical monopoly did not give the operator an Pop music pirate works really did redound to the general unrestrained right to charge whatever hunters good, since educational reform had fares it wished, nor to cease to operate made music a part of the cultural forma- trains for all but the wealthiest portions tion of every factory worker. Yet at the of society, even though these both might same time, the new mass market–the be sensible policies for the company committee called it the “No. 2 mar- itself. ket”–remained entirely distinct from In fact, as Willetts reminded his audi- the traditional public served by legiti- ence, Parliament routinely decreed that mate publishers. Willetts’s consumers train companies must run services at were working-class. They did not neces- prices that the people could afford. And sarily desire different music–artisans as this, he maintained, was precisely what well as gentlemen, he insisted, appreci- Parliament should do now for music. ated Tannhauser, Carmen, and William Where it had fostered the concept of Tell. But they did require music that they cheap travel, so it should now foster the could afford, and this the traditional concept of cheap music. There should be industry failed to supply. ½rst-class and third-class impressions of Willetts therefore argued that, far musical pieces, as there were ½rst- and from destroying an industry, his piracies third-class railway carriages. In each had no signi½cant effect at all on existing case ½rst-class and third-class products publishers’ sales. Indeed, it might even would produce the same end result, but increase them, since it amounted to free would differ in their appurtenances and advertising. (Willetts claimed that none would appeal to distinct markets. This, other than David Day had con½rmed as he pointed out, was precisely what Fran- much to him privately.) In other words, cis, Day & Hunter was already doing Willetts insisted on the fractured nature with its cheap music series–an idea that of mass culture at a time when others Willetts claimed had originally been his. were content merely to extol its size. So the pirate king was not against the So why were legitimate publishers notion of authorial right per se. Indeed, insensitive to this enormous new mar- he claimed he could pay authors more ket? Because, Willetts explained, they than legitimate publishers did. But he had evolved into a cozy, familial trust–a denied the principle that copyright hold- “ring” dedicated to protecting high cus- ers had a right to restrict the circulation tomer prices and low authorial remuner- of musical pieces themselves in the face ation by means of collaboration. But, of the public interest. Willetts argued, Parliament need not Instead he proposed that Parliament accept their conventions. For the sake of decree a statutory royalty: once pub- the public interest, changes must now be lished, anyone could reprint and sell a made. piece of music, but all who did so must Willetts urged that copyright return to pay the composer and author at the what he took to be its original meaning: required rate. This would make alleged that of a “liberty” conferred for the pub- piracy into practical orthodoxy. It would lic’s good, not the creator’s. The proper recalibrate commercial propriety around analogy was not with real property at all, a different kind of norm. And it was, in but with the kind of monopoly that fact, exactly the policy that would be might be granted to a supplier of any adopted to deal with the next great chal- public good, like a rail operator. Such a lenge to musical copyright. The next
Dædalus Spring 2002 75 Adrian generation saw gramophone recordings this way. He decided to make the Johns on intellectual subsumed into intellectual property law attempt. property under precisely this kind of principle. A new trial began in December of In 1904, however, the Parliamentary 1905. The alleged conspirators were all committee was not yet ready to accept men who had been the subject of raids, the logic of Willetts’s argument. Instead, including Wotton, Tennent, and Pudde- the committee recommended that a foot. But the main target was their lead- strict antipiracy bill be drafted. Yet his er, Willetts. The hearing took seven testimony did ½nd some sympathetic weeks, with over ½fty witnesses partici- hearers both within Parliament and pating. without. The publishers’ bid for a new Willetts chose to mount what looks law remained in the balance. And their like a token defense, questioning the campaign against piracy was hobbled in copyright status of the songs at issue and early 1905 when Willetts formed a limit- condemning the trade secrecy of the ed company. From now on, however publishers. Perhaps he hoped that Par- many copies of pirated sheet music liament would render the whole case Preston and Abbott might seize, Willetts moot. It did not. Convicted, he was sent himself would be invulnerable. to prison for nine months. Backed into a corner, the publishers For the ½rst time, pirates faced severe ½nally made a desperate gamble. They penalties. They could not hope to re- announced that piracy had grown so sume operations quickly if they had to endemic that they could no longer justi- counter conspiracy charges. Soon after fy investing in any new works whatsoev- the Willetts trial, a second conspiracy er. The entire music publishing industry case, this time against the “Leeds Pirate shut down. King,” a man named John Owen Smith who had done extensive business with The Parliamentary committee that Willetts, resulted in a similar victory. Willetts had addressed remarked in its Then a new music copyright law was report that piracy amounted to a “com- ½nally passed, having received the all- mon law conspiracy” against copyright. important support of the government. It was an almost casual aside, yet it The new law ended any hopes men like caught the attention of William Boosey, Willetts might have harbored that they chief pirate-catcher of Chappell and would be decreed legitimate retroactive- Company. It raised an interesting possi- ly. Willetts never recovered, and piracy bility. Although piracy itself was a mere- in general was soon reduced to virtually ly civil offense, conspiracy was a differ- zero. ent matter entirely. The act of conspira- cy was criminal–and thus subject to far The defeat of the pirates–and the last- more serious penalties, including prison. ditch survival of the publishers–rested Just when the war on piracy seemed lost, on a redaction into legal argument of Boosey saw a chance ½nally to damage Arthur Preston’s pilgrimages across the the pirates. After all, the evidence was land. The publishers won by ½nally con- already available, from all the raids car- fronting the fact that piracy was a matter ried out over the past eighteen months; not just of immorality, but of complex it had simply never been put to use in social networks with their own channels
76 Dædalus Spring 2002 of communication and their own ideolo- scraps could be combined into a detailed Pop music pirate gy. The conspiracy charge succeeded not understanding of piracy as a collective hunters by challenging the content of the pirates’ practice–and it was only when they networks, but by identifying them as were so combined that the pirates met networks. their nemesis. Only by replicating the So all of Preston’s raids and seizures social knowledge of Willetts himself were not, it turned out, so futile after all. could Preston and Abbott defeat him. Preston and Abbott’s efforts had yielded The moral of the story is therefore something immeasurably more valuable simple. The best way to counter piracy is than the hundreds of thousands of to appreciate the culture of the pirates copies they had amassed. What really themselves–and to understand it better counted were the tiny scraps of knowl- than they do. edge they had gained. Together those
Dædalus Spring 2002 77 Daniel J. Kevles
Of mice & money: the story of the world’s ½rst animal patent
In April of 1988, the United States warned that animal patenting would Patent and Trademarks Of½ce issued the spread beyond the laboratory to agricul- ½rst patent on a living animal in the his- ture, where it would work harmful eco- tory of the world’s patent systems. nomic effects. The Patent Of½ce, they Awarded to Harvard University, the said, had been high-handed in expand- patent covers a laboratory mouse that ing the scope of patent protection to one of its scientists had genetically engi- higher life forms on its own. So contro- neered to be supersusceptible to cancer. versial a policy initiative was properly a The Patent Of½ce’s adventurousness matter for Congress.1 grati½ed biotechnologists, but it also dis- In a congressional hearing on geneti- quieted many clerics. The World Coun- cally engineered animals the year before, cil of Churches attacked animal patent- Congressman Mike Synar, a wry Demo- ing, declaring that it “removes the dis- crat from Oklahoma, remarked that few tinction between life and nonlife” and lawyers knew anything about patent law. admonishing that “the gift of life from “Everyone knows it is not part of the bar God . . . should not be regarded as if it exam, so to hell with it.”2 But like many were a chemical product.” Other critics other branches of law–in the areas of, for example, business, regulation, and civil rights–patent law is also a branch Daniel J. Kevles, the Stanley Woodward Professor of political economy. And in recent of History at Yale University, has written exten- sively about issues in science and society, past and 1 Testimony of Jaydee R. Hanson . . . United Methodist Church, and Andrew W. Kimbrell . . . present. His articles, essays, and reviews have on Behalf of the Coalition on Animal Patenting, appeared in a variety of scholarly and popular U.S. Congress, House, Hearings before the Sub- journals. He is the author of several prizewinning committee on Courts, Civil Liberties, and the books, most recently “The Baltimore Case: A Administration of Justice, Committee on the Trial of Politics, Science, and Character,” and is a Judiciary, Transgenic Animal Patent Reform Act of 1989, 101st Cong., 1st Sess., September 13 and coauthor of the forthcoming “Inventing America: 14, 1989, 258–272. A History of the United States.” He is currently at 2 U.S. Congress, House, Hearings before the work on a history of the engineering and owner- Subcommittee on Courts, Civil Liberties, and ship of life. Kevles has been a Fellow of the the Administration of Justice, Committee on American Academy since 1990. the Judiciary, Patents and the Constitution: Trans- genic Animals, 100th Cong., 1st Sess., June 11, © 2002 by Daniel J. Kevles July 22, August 21, and November 5, 1987, 27.
78 Dædalus Spring 2002 years, the part of it that concerns the The commissioner’s ruling formed the Of mice & patenting of life, especially animals and basis of what came to be known as the money genes, has also become, for the ½rst “product of nature” doctrine–that time, a branch of ethics. while processes devised to extract what What is patentable according to stat- is found in nature can be patented, ob- ute dates back to the patent law of 1793, jects discovered there cannot. They are which declared, in language written by not inventions, nor can they as a class be Thomas Jefferson, that patents could be made anyone’s exclusive property. In the obtained for “any new and useful art, Plant Patent Act of 1930, Congress grant- machine, manufacture, or composition ed patentability to one class of living of matter, or any new or useful improve- products: plants that could be repro- ment thereof.” Jefferson’s phrasing re- duced asexually. There was no other ex- mained–and remains–at the core of tension of patent law to vital entities for the u.s. patent code, except for the eigh- forty years, but then along came Ananda teenth-century word “art,” which was Chakrabarty, a biochemist at the Gen- replaced in a 1952 congressional overhaul eral Electric Company, who in 1972, hav- of patent law by the word “process.”3 ing bioengineered a bacterium to con- The code said nothing about patenting sume oil slicks, ½led for a patent on the life, but a key precedent discouraging it living, altered bacterium. was established in 1889, when, in a land- The u.s. Patent Of½ce denied him a mark ruling, the u.s. commissioner of patent, arguing that no patent could be patents rejected an application for a issued on a living organism, not least patent to cover a ½ber identi½ed in the because it was a product of nature. needles of a pine tree. He noted that as- Chakrabarty appealed his case through certaining the composition of the trees the courts, and at the end of 1979 it in the forest was “not a patentable in- reached the United States Supreme vention, recognized by statute, any more Court under the rubric of Diamond v. than to ½nd a new gem or jewel in the Chakrabarty, in recognition of the fact earth would entitle the discoverer to that the position of the Patent Of½ce was patent all gems which should be subse- formally defended by Sidney Diamond, quently found.” The commissioner the current patent commissioner. added that it would be “unreasonable By the time the case arrived at the and impossible” to allow patents upon Court, it had become highly charged by the trees of the forest and the plants of the social and economic stakes that sur- the earth.4 rounded the swiftly accelerating com- 3 Fritz Machlup, “Patents,” International Ency- mercialization of molecular biology. In clopedia of the Social Sciences, ed. David L. Sills the 1970s the new techniques of recom- (New York: Macmillan, 1968), XI, 461–464; binant dna were beginning to be ex- Bruce W. Bugbee, Genesis of American Patent and ploited by adventurous startups such as Copyright Law (Washington, D.C.: Public Genentech. Companies were being Affairs Press, 1967), 152. founded at a rapid pace, while major 4 Ex Parte Latimer, March 12, 1889, C.D., 46 O.G. 1638, U.S. Patent Of½ce, Decisions of the pharmaceutical ½rms as well as several Commissioner of Patents and of the United States oil and chemical giants were plunging Courts in Patent Cases. . . 1889 (Washington, D.C.: into work with recombinant dna, initi- Government Printing Of½ce, 1890), 123–127. ating research programs of their own, See also H. Thorne, “Relation of Patent Law to giving research contracts to the startups, Natural Products,” Journal of Patent Of½ce Soci- and even obtaining an equity interest in ety 6 (1923): 23–28.
Dædalus Spring 2002 79 Daniel J. some of them. Biotechnology ½rms and friends of the court in the outcome of Kevles on intellectual ½rms eager to get into biotechnology the case: property sought connections with universities. In Some of the Amici receive contract funds return, the universities could expect div- from commercial corporations whose idends from the biotechnology industry future funding of research in this ½eld is in the form of gifts, research grants, and certain to be influenced by this Court’s license fees for the use of patents cover- decision. All of the individual Amici ing the valuable research products of receive or plan to receive indirect funding their laboratories. from royalties on patents which are held Chakrabarty had not used the tech- by their respective universities. . . . They nique of recombinant dna to engineer fear that adoption of a per se rule excluding his oil-eating bacterium, but the issue all living things from patentability will his case raised–the patentability of liv- inhibit commercial development of the ing organisms–spoke directly to the advances they are making in recombinant rapidly increasing stake in biotechnolo- dna research.5 gy patents. Ten amicus briefs were ½led in the case. Most supported Chakrabarty On June 16, 1980, the Court held, by and came from economically interested the slim margin of 5 to 4, that whether organizations including Genentech, the the invention was alive or dead was irrel- Pharmaceutical Manufacturers Associa- evant, that the bacterium was not a tion, the American Patent Law Associa- product of nature, that it was a product tion, the New York Patent Law Associa- of Chakrabarty and hence deserved a tion, and the American Society for patent. Chief Justice Warren Burger Microbiology. The University of Califor- delivered the majority opinion, enthus- nia also submitted a friend-of-the-court ing over the broad language that Thomas brief. It was not more alive to the hopes Jefferson had written into the patent of revenues from biotechnology than law of 1793, calling it expressive of its other universities, only more immedi- author’s “philosophy that ‘ingenuity ately interested, by virtue of the fact that should receive a liberal encouragement’” Herbert Boyer, one of the inventors of and noting that all succeeding Congress- recombinant dna and a cofounder of es had left Jefferson’s language virtually Genentech, was a member of the faculty intact. Rejecting the contentions of the on its San Francisco campus. Patent Of½ce, he found that the patent The University of California’s particu- code as written was ample enough to lar stake in the patenting of living prod- accommodate inventions in areas un- ucts was echoed and generalized in a sin- foreseen by Congress, including genetic gle amicus brief ½led on behalf of the technology, and to cover living microor- American Society of Biological Chemists, ganisms. Chakrabarty’s bugs were new the Association of American Medical 5 Brief Amicus Curiae of the Regents of the Univer- Colleges, the California Institute of sity of California, January 1980; Brief of Dr. Leroy Technology, and the American Council Hood, Dr. Thomas Maniatis, Dr. David S. Eisen- on Education as well as several faculty in berg, the American Society of Biological Chemists, biochemistry and molecular biology the Association of American Medical Colleges, the from Caltech and the University of Cali- California Institute of Technology, the American fornia at Los Angeles. The brief was Council on Education as Amicus Curiae, January 28, 1980. The amicus briefs are with Diamond v. unabashedly frank in declaring the fun- Chakrabarty, U.S. Supreme Court, Docket No. damental interest of each of these 79–136, 447 U.S. 303, January 1980.
80 Dædalus Spring 2002 compositions of matter, the product of liferate with the creature’s native Of mice & his ingenuity, not of nature’s. As such, genome, eventually ½nding its way into money they were patentable under existing every cell of the grown animal, including law.6 its sex cells. When the animal repro- duced, the dna would be transmitted to The principal inventors of the Harvard some fraction of its progeny, automati- mouse were Philip Leder, a distinguished cally supplying a large number of such biomedical scientist who had been genetically transformed animals. appointed to the university’s medical Testing this research protocol, Gordon school faculty in 1981, and Timothy and Ruddle stitched together a plasmid Stewart, a young biologist who in 1982 from two different fragments of viral had come to work in Leder’s lab. Their dna, one containing a region involved construction of the mouse hinged on an in dna replication, the other the code experimental technique devised in 1980 for a protein called thymidine kinase– at Yale University by Jon W. Gordon and an enzyme fundamentally involved in Frank H. Ruddle, who expected that it cellular growth–that was distinguish- could aid research into the genetics of able from the version of the protein development. Like cancerous growth, native to the mouse. They injected the normal development occurs in a living plasmid into a pronucleus–that is, the organism, not in a tissue culture dish. nucleus of either the sperm or egg before Only in a living organism does the one joins the other to form a single cellu- genetic program for cellular differentia- lar nucleus–in several hundred newly tion, its triggers keyed to the organism’s fertilized mouse eggs, which were then developmental stages, play itself out inserted into females made psuedopreg- over time to transform a single cell–the nant by coupling with vasectomized newly fertilized egg–into a mature ani- males. The females produced seventy- mal of various specialized parts. Gordon eight live offspring. Two of them pos- and Ruddle expected that important fea- sessed the plasmid dna in all of their tures of the program might be exposed cells, indicating–a ½rst in the annals of by introducing foreign dna into the liv- biology–that the two had incorporated ing mammalian system. The immigrant the foreign gene and had thus been dna would be detectable by conven- genetically modi½ed. Gordon and Rud- tional techniques in the tangle of dna dle reported their experiment in Decem- native to the organism; its behavior ber of 1980 in the Proceedings of the could thus be monitored, revealing National Academy of Sciences, declaring information about the regulation of their results to mean that “genetic trans- genes and the physiological functions of formation can be extended to whole the proteins for which they coded. mammalian organisms at a very early With the techniques of recombinant stage in their development.”7 dna, any speci½c piece of dna could be The creation of mice with foreign isolated for insertion into an animal. genes–“transgenic mice,” to use the And then, if the dna were introduced when the embryo consisted of just one 7 Jon W. Gordon, George A. Scangos, Diane J. cell, it could integrate into and then pro- Plotkin, James A. Barbosa, and Frank H. Rud- dle, “Genetic Transformation of Mouse Embryos by Microinjection of Puri½ed DNA,” 6 Diamond v. Chakrabarty, 447 U.S. 303, 100 S. Proceedings of the National Academy of Sciences 77 Ct. 2204 (1980), 2206–2212. (December 1980): 7380–7384.
Dædalus Spring 2002 81 Daniel J. term that Gordon and Ruddle soon plish by creating a transgenic mouse was Kevles on intellectual coined–attracted wide attention in the to see whether myc could be made to property press (news stories appeared in Time, operate as an oncogene in a living ani- Newsweek, and The New York Times). mal, especially in its breast, and to test However, the publicity did not stimulate his hypothesis about how it worked as a lot of immediate experimental com- an oncogene–namely, by a deregulation mitment. Gordon and Ruddle noted that that permitted the superproduction of transgenic procedures, especially the its normal protein. Leder wanted to con- insertion of foreign dna into an early centrate the expression of the myc gene embryo, were dif½cult because newly at high levels primarily in the cells form- fertilized mammalian eggs were delicate ing the animal’s mammary tissue. So and small. In a conversation with Leder, targeted, the gene would be little or I remarked that transgenic technology unexpressed in male mice, since they do seemed simple. He bridled a bit, declar- not develop mammary tissue, and ing, “It’s very simple in the sense that expressed in females, making them a someone will say that playing the violin model for the study of breast cancer. is fairly simple.” He pointed out that Leder accomplished the targeting of myc inserting the foreign dna into an em- by replacing some fraction of its pro- bryo, and then the embryo into a tiny moter region by the dna of the mouse opening in the mouse oviduct, which is mammary tumor virus that is activated thread-thin, requires not only some in the breast. high-powered technology, particularly a In 1983, Leder and Stewart created a very good microscope and very good colony of ten transgenic mice that pos- micromanipulators, but also excellent sessed and passed to their progeny vari- hand-eye coordination. One of his post- ous versions of a fused gene–a construc- doctoral fellows said that it’s a good idea tion of mammary tumor virus dna and not to have more than one cup of coffee the region of the mouse’s normal myc on a day that you’re going to do microin- gene that codes for its protein. From jections, adding that otherwise your these founder ten, they established thir- hand shakes too much and you can’t teen lines of myc-mice. By mid-1984, they manipulate the embryo. had suggestive preliminary data, includ- The dif½culties notwithstanding, ing a key set of results: Two of the ten Leder tried transgenic experiments founders, both females, developed can- before he arrived at Harvard, unsuccess- cer of the breast during an early preg- fully, but then tried again once in Cam- nancy. One produced three daughters bridge–this time with several construc- with the fused myc gene, each of which tions of different genes, including an developed breast cancer in the course of oncogene called the myc gene. Timothy a second or third pregnancy. Stewart had come to Leder’s Harvard Leder proceeded to test whether group from the Institute for Cancer superexpression–that is, high activa- Research at Fox Chase, in Philadelphia, tion–of the fused myc gene in the mam- where he had collaborated in a trans- mary tissue was suf½cient by itself to genic experiment. Leder said, “Stewart provoke malignancy. Scrutiny of the was a very good biologist, an extremely mouse breasts showed that it was appar- talented young man, both gifted intellec- ently not suf½cient: although the onco- tually and very well coordinated.” gene was expressed in all the mammary Part of what Leder hoped to accom- tissue, only some of the breast cells had
82 Dædalus Spring 2002 turned tumorous. These observations down to giving them varying doses of a Of mice & were explainable by the multiple-hit the- mutagen or carcinogen and observing money ory of oncogenesis. The transformation whether malignancies develop. Such of a normal cell into a cancerous one experiments are very time-consuming– requires mutagenic hits that activate two the mice may be held for two years or or more oncogenes. Leder’s results sug- more–very hard, and very expensive. But gested that cells with elevated myc activi- if you want to use a chemical for some ty required a second hit to be made purpose–say, in crop dusting or fertiliza- malignant–the kind of second hit that tion–you want to have an answer to the the two founder females with breast can- question of whether it’s carcinogenic as cer and their three similarly diseased soon, as safely, and as sensitively as you daughters had each presumably suffered. can. Well . . . we know that the activation of the Leder had not devised what came to be myc gene is necessary, but not suf½cient, known as the “oncomouse” for the sake for carcinogenesis. It requires some addi- of producing a patentable product. But tional hit. The likelihood of any gene in once the mouse was constructed, he rec- any cell suffering a mutational hit is ognized that it might have commercial roughly about one in a million–ten to the possibilities. Indeed, his initial results sixth power–per generation. The proba- indicated that it could serve a variety of bility of any one cell’s experiencing two different purposes, some purely scien- such hits is the product of the probability ti½c, others highly practical. Superex- of each occurring–or ten to the twelfth pression of the fused myc gene might be power. So that’s six orders of magnitude induced and controlled in any type of difference in probability. tissue by the administration of an appro- priate amount of hormone, say, gluco- Insertion of the fused myc gene into corticoid. Leder and his collaborators the mouse imposes a ½rst carcinogenic thus expected that the mice could be hit on every cell in the animal. Although deployed to investigate how different the probability that any one cell will levels of myc activity influence normal experience a second hit is one in a mil- development. They might also supply lion, the chance that such a hit will occur oncogenetic tissue from most any region in the body is far higher: because the of the body to laboratories for cell cul- body contains millions of cells, at least tures. The tissue might be of the one-hit one of them, somewhere, is likely to variety, containing just the fused myc undergo a second hit. Leder said that oncogene, or it might be of the two-hit animals with a built-in ½rst hit will come type, taken from tumors that might down with malignancies at a faster rate occur in any organ or cell of the mouse. than normal animals, explaining, “For Most practical was the role that example, if we start with a 100 percent Leder’s myc mouse could play in deter- tumor-free group of animals from some mining the power of a chemical to stim- of our strains, 50 percent of them devel- ulate carcinogenesis or mutagenesis op tumors by the age of 150 days. But we (genetic mutations). Leder explained: can provoke a quicker second hit by treating the animals with a chemical Much carcinogen testing goes on in mutagen or a carcinogen. If we do that, inbred strains of mice that have a very low 50 percent of our animals develop incidence of malignancy. The test comes tumors in only 45 days. So our transgenic
Dædalus Spring 2002 83 Daniel J. mouse provides a test for the mutagenic- attorney named Paul Clark, from the Kevles on intellectual ity or carcinogenicity of a chemical that downtown Boston law ½rm of Fish & property is much faster than the conventional Richardson, Harvard’s principal outside trial with ordinary mice.” patent counsel. Clark later recalled in a conversation with me that “the work’s In conjunction with Leder’s recruit- most apparent and compelling manifes- ment to Harvard, the DuPont Corpora- tation was the animal itself,” continuing, tion had given the university $6 million “it became clear immediately that it was for support of Leder’s research. The important to claim the mice, to give principal quid pro quo was simple: while Harvard and its licensee, DuPont, all the Harvard would own any patents that legal rights to which they were entitled. might arise from Leder’s investigations, Claims on methods of using the mice, or DuPont would be entitled to an exclu- on plasmids, although of some impor- sive license on any and all such patented tance, would not have adequately pro- properties. tected the invention.” Clark’s reasoning Under the circumstances, Leder con- was standard among patent lawyers: sidered himself required by Harvard to better to protect the product as well as inform the university about any develop- the processes used to produce it; other- ment in his laboratory that might be wise, competitors, using different suf½ciently useful and original to war- processes, could develop similar prod- rant a patent. He realized that no animal ucts. had ever been patented, but he knew Clark also saw that Leder’s transgenic that patent protection for living bacteria animals were, like the bacteria in had recently been established in the Chakrabarty, new compositions of matter Chakrabarty case. Indeed, after the made by man, and he knew that the Chakrabarty ruling, several critics had Supreme Court had admonished in the insisted that the decision appeared to Chakrabarty case that a court cannot leave no legal obstacle to the patenting properly consider the state of being alive of higher forms of life–plants, animals, when deciding whether something falls and possibly human beings–or, by within the protection of patent law. implication, to the genetic engineering Thus, Clark explained, “it was hard for of such life forms. me to see any legal basis for excluding Leder wondered whether his mice claims on animals.” might be eligible for patent protection On June 22, 1984, on behalf of Harvard because they formed a man-made model University, Clark ½led an application for system for the study of cancer, including a patent on Leder and Stewart’s inven- the testing of its causes and therapies. tion. The main utilities that he claimed During his early work on the mice– were straightforward, including the use about the end of 1983–Leder brought of such animals as sources of malignant them to the attention of the Of½ce of or protomalignant tissue for cell culture Technology Licensing and Industry and as living systems on which to test Sponsored Research, the patents arm of compounds for carcinogenicity or–in Harvard Medical School. To explore the the case of substances like vitamin E– issue, the Of½ce of Technology Licens- power to prevent cancers. However, ing assembled a small group, including, Clark was not at all conservative in what along with Leder and several DuPont he claimed as the actual invention. It intellectual property lawyers, a patent was not simply a transgenic mouse with
84 Dædalus Spring 2002 an activated myc gene, which would have the 13th Amendment to the u.s. Consti- Of mice & been extraordinary enough. It was any tution. Since it outlaws slavery, it in money transgenic mammal, excluding human effect prohibits one human being from beings, containing in all its cells an acti- holding a property right on another. But vated oncogene that had been intro- following Ex parte Allen, the patent exam- duced into it–or an ancestor–at an iners had no problem granting Leder and embryonic stage. Stewart’s claim on their mouse. The same year that Harvard ½led for a patent on Leder’s mouse, a marine biol- The ethical objections to the patenting ogist named Standish K. Allen and col- of animals had been adumbrated at the laborators at the University of Washing- time of the Chakrabarty case. During ton applied for a patent on a version of arguments in the case, vigorous objec- Crassostrea gigas, a variety of the Paci½c tion to Chakrabarty’s claim had come oyster, which they had improved by from the People’s Business Commission making it chromosomally triploid. The (pbc), an activist group headed by Jere- claim was partly for the triploidy pro- my Rifkin. Rifkin was a social agitator cess, which made the oyster more edible. and sleepless critic of biotechnology. However, it also covered the improved The pbc’s dissent was partly econom- oyster as such, which challenged prece- ic–patents on living organisms would dent. foster monopoly in vital areas such as The examiners in the u.s. Patent the food industry. It was quasi-religious, Of½ce denied the claim, holding that too, holding that “the essence of the mat- neither Diamond v. Chakrabarty nor any ter” was that to permit patents on life other patent ruling authorized the grant was to imply that “life has no ‘vital’ or of a patent on a higher animal, even if sacred property,” that it was only “an only an invertebrate. The examiners also arrangement of chemicals, or mere found that the triploid oyster was not ‘compositions of matter.’”9 In its ruling patentable on the technical ground that on the case, the Supreme Court majority the innovation was obvious to anyone took note of these and other apprehen- schooled in the art of oyster breeding. sions, observing that they “present a Allen and his colleagues appealed. In gruesome parade of horribles” and 1987, the Board of Patent Appeals and “that, at times, human ingenuity seems Interferences of the u.s. Patent and unable to control fully the forces it cre- Trademark Of½ce issued a decision, ates.” The majority observed, however, since known as Ex parte Allen. The Board that genetic research with its attendant upheld the examiners on the point that risks would likely proceed with or with- obviousness of art disquali½ed the oyster out patent protection for its products for a patent. However, it also declared and that neither legislative nor judicial that patents could in principle be grant- ½at as to patentability would “deter the ed on nonhuman animals.8 scienti½c mind from probing into the The ruling in Ex parte Allen did defuse unknown any more than Canute could one important public fear about law and command the tides.” biotechnology by stipulating that human The patenting of animals made the beings cannot be patented by reason of debate over the patenting of life more
8 Ex Parte Allen, United States Patent Quarterly 9 Brief on Behalf of the People’s Business Commis- (1987): 1425. sion, Amicus Curiae, 1979.
Dædalus Spring 2002 85 Daniel J. charged and brought into it new patenting would impede access to or use Kevles on intellectual groups–notably animal rights activists, of transgenic research materials. property environmentalists, clerics, and farmers’ Kastenmeier and his subcommittee representatives. Their objections were responded to the debate pragmatically– well aired in hearings held in 1987 and ignoring most of the objections raised by 1989 before the House Judiciary Sub- Rifkin and his allies but paying attention committee that dealt with patents, to those that touched directly on issues chaired by Congressman Robert Kasten- of public policy concerning the key meier.10 The objections raised to the interest groups involved, particularly patenting of animals tended to be agriculture. In 1988, Kastenmeier pro- speci½c to the groups raising them: ani- duced a bill that would exempt farmers mal rights activists contended that such from any restraint, including the re- patents would exacerbate the degrada- straint of royalty payments, on what tion of animals; environmentalists they did with the progeny of their argued that genetically engineered ani- patented animals. It declared explicitly mals would escape and threaten the that human beings cannot be patented. integrity of wildlife; clerics claimed that The bill passed the House, but it was not patenting reduced God’s creatures to taken up in the Senate before the end of mere material objects; and farm spokes- Congress. Since then, no bill addressing persons worried about the economic animal patents has reached the floor of effects of patented animals on small the House or Senate. farmers. Moreover, advocates of biotechnology Strong defenses of animal patenting insisted on distinguishing between came from other witnesses, notably rep- issues of political economy and issues of resentatives of the biotechnology indus- ethics. The former had a place in dis- try and of major universities. Their argu- putes over patent policy; the latter, at ments, echoing those advanced in the least in the United States, did not, even large majority of the amicus briefs sub- though they might be legitimate in prin- mitted in the Chakrabarty case, empha- ciple. The appropriate venues for consid- sized the role of patents in stimulating ering them were the legislative and regu- biotechnological innovation, fostering latory arenas of government, not the American competitiveness, and advanc- Patent Of½ce. ing medical research, including diagnos- tics, therapies, and cures. No signi½cant In contrast, the European Patent Con- objection was raised against animal vention–which was established in 1962 patenting by university representatives and governs the national patent systems or scientists on grounds that such of its adhering nations–speci½cally excludes two types of inventions from 10 U.S. Congress, House, Hearings before the eligibility for patents. Article 53(a) pro- Subcommittee on Courts, Civil Liberties, and hibits patents on any invention that is the Administration of Justice, Committee on the Judiciary, Patents and the Constitution: Trans- contrary to public order or morality. And genic Animals, 100th Cong., 1st Sess., June 11, Article 53(b) prohibits them on plant or July 22, August 21, and November 5, 1987; U.S. animal varieties, or anything produced Congress, House, Subcommittee on Courts, by a natural biological process, except Intellectual Property, and the Administration of for microbiological products. Article Justice, Committee on the Judiciary, Transgenic Animal Patent Reform Act of 1989, 101st Cong., 1st 53(a) seems to have its roots in Roman Sess., September 13 and 14, 1989. law. Article 53(b) was adopted to prevent
86 Dædalus Spring 2002 interference with the international sys- environmental issues. The dissent mobi- Of mice & tem for the protection of breeders’ lized by these public-interest groups money rights–it is known acronymically as appears to have been centered in Eng- upov and was created in 1961–in new land, where animal welfare groups are varieties of plants. At the time of the cre- powerful, and in Germany, where oppo- ation of upov, the extension of the ex- sition to genetic engineering and con- clusion to animal varieties was undoubt- cern with environmental protection are edly an afterthought. vigorous. The arguments raised by these However, both articles were brought groups closely resembled those ad- into play when the European Patent vanced in the United States against ani- Of½ce (epo), which administers the mal patenting. However, the European convention and which is headquartered agricultural community appears to have in Munich, took up Harvard University’s been more profoundly split on patents application, ½led in 1984, for a European for plants and animals than its American patent on its oncomouse. Ruling in June counterpart, with considerable opposi- of 1989, the epo found that oncomouse tion coming from countries where did not violate the public-order-and- small-scale agriculture (as distinct from morality clause of the convention, but it agribusiness) continues to flourish–for rejected Harvard’s application on example, Denmark. grounds that the mouse did violate Arti- The third-party ½lings evidently con- cle 53(b). In the view of the epo examin- tributed signi½cantly to the decision of ers, oncomouse was a new variety of ani- the appeals board, which in 1990 re- mal, the product of a natural biological turned the Harvard application to the process, and, hence, ineligible for a original examiners for reconsideration. patent under the convention.11 The appeals board, agreeing with Har- Harvard quickly appealed the rejec- vard, declared that the rejection on tion, insisting that its mouse was not a grounds of Article 53(b) was without new variety but a new type of animal merit, but it held that the examiners had that transcended varietal classi½cation, to review the application against Article and that it was not a natural biological 53(a), the morality clause. The examin- product but–echoing Chakrabarty’s ers were compelled to reconsider issues claim–a biological entity made by man. raised by the third-party ½lings, particu- The appeal provoked an unprecedented larly whether a patent on oncomouse degree of third-party ½lings. (Under the would lead to animal suffering (mice European Patent Convention, interested with cancer) and environmental danger third parties can ½le comments for or (the spread of oncogenes into the natu- against pending applications and ap- ral mouse population if the oncomice peals, an option that is unavailable in the were to escape). However, the appeals American patent process.) Many of the board also instructed the examiners to ½lings were identical, the products of weigh those matters against the likely organized opposition to animal patent- bene½t to human beings that might arise ing in Europe from public-interest from research with oncomice.12 organizations concerned with animal Harvard’s lawyers in Europe contend- rights, Third World agriculture, and ed that the mice would, of course, con-
11 European Patent Of½ce, Press Release No. 12 European Patent Of½ce, “Decision of the 10/89, “EPO Refuses Patent Application for Technical Board of Appeal 3.3.2 of 3 October Oncogenic Mouse.” 1990.”
Dædalus Spring 2002 87 Daniel J. tribute to the battle against cancer, mak- the convention, the ruling was liable to Kevles on intellectual ing them distinctly bene½cial to human still further third-party objections; the property beings. They also argued that, since the comment period closed in February of mice were supersusceptible to the con- 1993, having drawn many more ½lings of traction of cancer, fewer of them would dissent, most of them advancing the be required to test for carcinogens, and same arguments and coming from thus fewer mice would suffer in such roughly the same sources as in the ½rst testing. Finally, they pointed out that the round. mice posed only a minute environmental The third-party dissidents did not pre- risk, because they were to be con½ned to vail, just as the opponents to animal the laboratory rather than released into patenting have not prevailed in the the wild, and while unintended release United States. The biotechnology com- might occur, the danger was surely a plex, having had its way politically on matter not for the patent system but for the western side of the Atlantic, had the agencies concerned with the control worked its will on the eastern side, too, of hazardous materials.13 given the pressures of high-technology The Harvard lawyers’ arguments per- competitiveness and the apparent lack of suaded the European Patent Of½ce, persuasiveness of the antipatenting which incorporated them in a ruling, arguments. However, even though issued in October of 1991, indicating that American patent law continues to be lit- a patent on the mouse could and likely erally amoral, anyone seeking a patent would be granted.14 Under the terms of on a living organism in Europe will have to satisfy the requirements of Article 13 “European Patent Application No. 86 53(a). In the globalizing political econo- 304490.7, President and Fellows of Harvard my of biotechnology, American innova- College, Response to the Of½cial Letter of 11th tors must now attend to the ethical fea- December 1990. . . .” tures of their innovations.
14 European Patent Of½ce, Press Release 3/92, “European Patent for Harvard’s Transgenic Mouse.”
88 Dædalus Spring 2002 Rebecca S. Eisenberg & Richard R. Nelson
Public vs. proprietary science: a fruitful tension?
What should be public and what more widespread as the role of for-pro½t should be private in scienti½c research? research expands in a broader range of The competitive sprint of public and scienti½c ½elds. Will science progress private laboratories to complete the more swiftly and fruitfully if its ½ndings sequence of the human genome has are in the public domain, or if they may brought this question to the fore. The be captured as intellectual property? same question frames the developing What kinds of research should be fund- struggle over terms of access to human ed publicly and what kinds left for pri- embryonic stem cell lines and the con- vate ½nancing? Is competition between flict between Microsoft and the open- public and private science stimulating source movement over how best to pro- and constructive, or is it wasteful and mote software development. counterproductive? We expect such conflicts to become Our aim in this essay is to bring these issues into clearer view. They have been Rebecca S. Eisenberg is the Robert and Barbara kept in the analytic shadows until Luciano Professor of Law at the University of recently by the presumption that science Michigan Law School. She has been an active and technology are largely distinct participant in public-policy debates regarding enterprises. In fact, the problems arise in intellectual property in biomedical research and is areas where science and technology a member of the Panel on Science, Technology overlap. and Law of the National Academies. Professor We thus begin our discussion by Eisenberg is also a member of the advisory com- reviewing the conventional distinction mittee to the director of the National Institutes of between science and technology. We Health. then consider different perspectives on the appropriate public and private Richard R. Nelson, the George Blumenthal spheres in ½elds where science and tech- Professor of International and Public Affairs, nology are intertwined, ½rst in general, Business and Law, at Columbia University, focus- and then in the context of the Human es his research on long-term economic change, Genome Project. We conclude with a including technological advances and the progress brief analysis of policy options. of economic institutions. His recent publications include “The Sources of Industrial Leadership” It is often assumed that science and (with David C. Mowery, 1999). technology are–or ought to be–inde-
Dædalus Spring 2002 89 Rebecca S. pendent enterprises. In a classic series of between science and technology on Eisenberg & Richard R. essays, collected in his 1973 book The which it rests. Basic science and applied Nelson on Sociology of Science, Robert Merton technology often differ in important intellectual described science as a public enterprise ways and flourish under different insti- property generating public knowledge. This has tutional regimes. Horace Freeland Jud- become the standard view, accepted by son’s ½ne history of molecular biology, many working scientists. The Eighth Day of Creation, illustrates the According to this theory, the goal of power of a research regime in which all scienti½c research is to advance funda- scientists can draw freely upon the prior mental knowledge about the world. This work of others, each pursuing their par- effort need not be directly useful, much ticular interests and bets regarding the less pro½table, at least in the near term, most promising lines of inquiry, check- although sponsors and practitioners of ing, correcting, and building upon each science generally expect that advances in other’s results. At the same time, the his- scienti½c understanding will foster later tory of technological progress in such useful advances in applied technology. ½elds as pharmaceuticals shows the The principal venues for science are uni- power of pro½t incentives to promote versities and government laboratories, the development of products that meet and the principal reward for success is human needs. recognition and acclaim from the scien- What the conventional account leaves ti½c community. Open disclosure of out, however, is the often complex ways research results, through timely publica- in which basic science and applied tech- tion and other mechanisms permitting nology frequently overlap. Such cases of free access, is the norm. Since research- overlap raise dif½cult questions about ers do not earn ½nancial returns from where, and how, to draw lines between this work, they rely on philanthropic or the public and private spheres. More- public funding. over, in cases where science and technol- Most social theorists, including ogy do overlap, public and private inter- Merton, have drawn a sharp contrast ests may conflict–which only makes between basic science and applied tech- more pressing the question of where, nology. While basic science is a public and how, to distinguish between what enterprise pursuing fundamental knowl- ought to be public and what ought to be edge, applied technology is a private private. enterprise pursuing proprietary solu- From the start of modern science, tions to practical problems. The goal of many scientists have been interested in the individuals and ½rms doing such practical problems, and the challenge of applied research is to solve practical solving those problems has driven their problems in the hope of earning pro½ts. search for fundamental knowledge. Uni- Such research draws freely on the pool of versities long have dedicated a consider- public scienti½c knowledge, but does not able portion of their research efforts to contribute to that pool. Intellectual understanding and solving practical property rights protect the pro½ts of problems, particularly in the United those who invest in successful technolo- States, where, until World War II, agri- gy research, preserving incentives to culture occupied a large share of aca- provide additional funding. demic research. In the postwar era, med- There is considerable truth in this con- ical schools have accounted for a large ventional account and the distinction and growing share of research at u.s.
90 Dædalus Spring 2002 universities, currently amounting to focused scienti½c research is often essen- Public vs. proprietary roughly half of the total. Much of this tial in order to advance these technolo- science work is motivated by the practical goal gies. Some private ½rms perform basic of improving human health. research, and many of their researchers More generally, much academic sci- publish scienti½c papers, although for- ence lies in what the late Donald Stokes pro½t ½rms are less inclined than univer- called “Pasteur’s Quadrant.”1 Standard sities to place their ½ndings in the public taxonomies place the pursuit of funda- domain without restrictions. mental knowledge and the solution of In ½elds where scienti½c advances practical problems at opposite ends of a have conspicuous commercial potential one-dimensional spectrum from “basic” (such as pharmaceutical research), the to “applied” research; Stokes’s taxono- pursuit of pro½t and the pursuit of my recognizes that the work of many knowledge often converge, creating sub- scientists combines both objectives stantial overlap in research pursued in simultaneously. Like Niels Bohr, Louis academic and industrial settings. Re- Pasteur sought fundamental under- search results are at once part of a grow- standing, and like Thomas Edison, he ing corpus of scienti½c knowledge for sought solutions to practical problems. use in further research and an important For scientists conducting research with- step toward a promising commercial in “Pasteur’s Quadrant,” the objective is product. Within this zone of overlap, to achieve the fundamental understand- Mertonian public science and market- ing necessary to solve practical prob- driven proprietary research coexist, set- lems. ting the stage for conflict over what This hybrid motivation characterizes should be public and what should be pri- most research in the biomedical sciences vate. The challenge for public policy is to as well as in material science, computer devise arrangements that preserve the science, and theoretical work in engi- great advantages of an open system for neering. These ½elds are not exception- basic science while still preserving pro½t al: they are in the mainstream of con- incentives for the creation of valuable temporary academic research, posing a new products. serious challenge to a taxonomy that draws a sharp distinction between basic In our view, a common way of thinking science and applied technology. In re- about how to draw the line between cent years private industry has been a public and private science is seriously growing source of funds for academic misleading. It is often said that public research in these areas, and universities science ought to focus only on research have been increasingly inclined to patent that private ½rms will not conduct. If their discoveries. certain areas of research appear to have The other side of the coin is that cor- high social value yet promise relatively porate research and development (R&D) low returns, then public ½nancing may often involves the pursuit of fundamen- be necessary to correct for the failure of tal knowledge. Many technologies markets to get the job done. Private depend on scienti½c knowledge, and sponsors might not expect to capture enough value to justify R&D costs if 1 Donald E. Stokes, Pasteur’s Quadrant: Basic anticipated research results are far Science and Technological Innovation (Washing- removed from practical applications, if ton, D.C.: Brookings, 1997). they are unlikely to be patentable, or,
Dædalus Spring 2002 91 Rebecca S. more generally, if pro½ts are highly has been a central concern of econo- Eisenberg & Richard R. uncertain. On the other hand, if the mists, we think another inef½cient Nelson on research offers a reasonable prospect of aspect of patents is especially important intellectual yielding practical bene½ts, if intellectual in the context of scienti½c research: property property law permits the sponsor to patents on essential materials and pro- appropriate a suf½cient share of the cesses may require researchers to seek value of those bene½ts, and if private licenses before they proceed, which can ½rms are therefore willing to undertake impose signi½cant transaction costs. In the research, so much the better. In this biomedical research today, exchanges of case, it is commonly argued, public proprietary research materials, tech- funds are not needed and should be niques, and data are increasingly gov- spent for other purposes (or left in the erned by material transfer agreements, pockets of taxpayers). patent license agreements, and database This analysis assumes that the only access agreements. argument for public support of science is At a minimum these agreements need that important research would not occur to be reviewed and approved before without it. Although this is an excellent research proceeds; often they must be reason for public support of research, it renegotiated, leading to further delays is not the only reason. Even if expected and sometimes to bargaining breakdown practical bene½ts make patentable out- with the potential for future litigation.2 comes likely and motivate private ½rms Having the relevant knowledge and ma- to pay for the research, public funding terials freely available in the public do- might still be justi½ed in order to in- main minimizes transaction costs by crease the open domain of commonly relieving users of the need to identify owned knowledge upon which scientists and bargain with intellectual property may draw freely in future research. owners. From an economic standpoint, patents A third problem patents present for are not an unmixed blessing. Patent research activity is that they may give rights motivate private ½rms to invest in patent holders broad control over future research, but they also introduce signi½- research paths, allowing them to block cant inef½ciencies that may inhibit research by rivals. Patents on fundamen- future research. Patents permit innova- tal discoveries that open up new re- tors to restrict access to, and thus raise search areas are typically broader than prices for, their inventions. Although patents on incremental technological sometimes necessary to allow ½rms to advances in established ½elds, because recover R&D costs and thus pro½t from the principal constraint on the scope of innovation, such pricing is inef½cient, 2 Rebecca S. Eisenberg, “Bargaining Over the because it excludes users who would be Transfer of Proprietary Research Tools: Is This willing to pay enough to cover marginal Market Failing or Emerging?” in Expanding the production costs but not the additional Boundaries of Intellectual Property: Innovation patent premium. The resulting losses Policy for the Knowledge Society, ed. Rochelle could be considerable if the excluded Cooper Dreyfuss, Diane Leenheer Zimmerman, users are not merely private consumers, and Harry First (New York: Oxford University Press, 2001), 209–249; Michael A. Heller and but publicly funded researchers per- Rebecca S. Eisenberg, “Can Patents Deter forming a socially valuable activity. Innovation? The Anticommons in Biomedical While the effect of patents on prices Research,” Science 280 (1998): 698–701.
92 Dædalus Spring 2002 patent claims is the prior state of knowl- sub-Saharan Africa or Medicare patients Public vs. 3 proprietary edge in the relevant ½eld. Broad claims in the United States). science on early discoveries that are fundamen- The problem that concerns us arises tal to emerging ½elds of knowledge are when the domain of public science particularly worrisome in light of the becomes entangled with the domain of great value, demonstrated time and proprietary product development. This again in the history of science and tech- zone of overlap has been growing steadi- nology, of having many independent ly since the late 1970s. An important fac- minds at work trying to advance a ½eld. tor has been the development of molec- Public science has flourished by permit- ular biology, a science squarely in Pas- ting scientists to challenge and build teur’s Quadrant, as a ½eld of both public upon the work of rivals. Intellectual and private research. Partly because of a property rights to fundamental discover- series of laws often referred to collec- ies threaten to limit the number of play- tively as “the Bayh-Dole Act,” by which ers in the system at an early stage, there- businesses and universities can claim by diminishing its power. property rights to technology created On the other hand, private enterprise under publicly funded programs, univer- has been an extraordinarily powerful sities have become active participants in engine for the generation of new prod- the patent system.4 A large share of uni- ucts and processes, and in some ½elds versity patents are in molecular biology. (notably pharmaceuticals) strong patent Many of these patents cover basic dis- protection has been a vital part of the coveries:5 as the Patent and Trademark system. Businesses, driven by the hope Of½ce (pto) and courts have allowed of pro½t and the fear of competition, such “upstream” patents, a signi½cant have a far better feel than government private industry has grown up around agencies for the kinds of new products pre-product development research in the market wants and can respond more molecular biology, seeking to pro½t by quickly to emerging demand and tech- patenting and licensing discoveries to nological opportunities. other ½rms that use them to develop For the most part, the inef½ciencies commercial products. The result has associated with patents do not generate been a considerable blurring of the strong pressures to substitute public public-private divide, with universities R&D for proprietary R&D, even for prod- and other one-time champions of open ucts such as pharmaceuticals that meet science claiming their own intellectual important public needs. Although we property, while private ½rms extend pro- might lament the high cost of patented prietary research further upstream, drugs, the advantages of promoting pri- sometimes in collaboration with aca- vate investment in new product develop- ment generally outweigh the inef½cien- 4 Rebecca S. Eisenberg, “Public Research and cies of patents. Rather than displacing Private Development: Patents and Technology Transfer in Government-Sponsored Research,” private R&D, the government can subsi- Virginia Law Review 82 (1996): 1663–1727. dize access to patented inventions for needy users (such as aids patients in 5 David C. Mowery, Richard R. Nelson, Bhaven N. Sampat, and Arvids A. Ziedonis, “The 3 See 35 US Code §§ 102, 103; Robert P. Merges growth of patenting and licensing by U.S. uni- and Richard R. Nelson, “On the Complex versities: an assessment of the effects of the Economics of Patent Scope,” Columbia Law Bayh-Dole Act of 1980,” Research Policy 1 (30) Review 90 (1990): 839–916. (2001): 99–119.
Dædalus Spring 2002 93 Rebecca S. demic scientists and sometimes in com- oped proprietary tools that would great- Eisenberg & Richard R. petition with them. ly accelerate the Human Genome Pro- Nelson on Although the convergence of public ject, including automated dna-sequenc- intellectual and private resources for biomedical ing machines and the polymerase chain property research has accelerated progress, we reaction. The mass-production character believe that current policy and practice of sequencing 3 billion base pairs of may have gone too far in promoting dna, and the “top-down” organization patenting of fundamental research dis- such a task seemed to entail, set it apart coveries. from the investigator-initiated proposals Patents on inventions with clear prac- for creative, small-scale, academic inves- tical applications may well facilitate tigations that had been typical of nih- product development, but patents on funded research. Yet talk of private ini- discoveries that may spur future basic tiatives to sequence the genome repeat- research impose serious costs on the sci- edly provoked concerns about ensuring enti½c enterprise and are much harder to access to the data for use in future re- justify. The Bayh-Dole Act ignores this search, renewing enthusiasm for public distinction, although it is becoming funding. increasingly important to federal agen- Private investors have repeatedly fund- cies that support fundamental research ed targeted projects within the broad and to private ½rms that draw on emerg- scope of the Human Genome Project ing knowledge to develop new products. that seemed likely to yield commercially The Human Genome Project provides a signi½cant results, sometimes taking useful focus for exploring these issues. advantage of the reluctance of the public project to focus on “cream-skimming” Public and private efforts to complete projects that could jeopardize later sup- the dna sequence of the human genome port for the more costly job of complet- vividly illustrate the interests at stake in ing a de½nitive reference sequence of the mediating the public-private divide in human genome.7 In the early 1990s pri- Pasteur’s Quadrant. Although the vate ½rms focused on sequencing the Human Genome Project began in the estimated 3 percent of the genome that late 1980s as a government funded “Big cells use to make proteins, using an Science” project, from the outset it approach called “cdna sequencing.” promised both new fundamental knowl- One such ½rm, Human Genome Sci- edge and practical payoffs with the ences, was founded to exploit a research potential for commercial pro½t.6 strategy pioneered by Dr. J. Craig Venter, By the late 1980s private ½rms already then at the nih, of using automated had a substantial presence in genetics dna-sequencing machines to obtain and molecular biology and had devel- partial sequences (called expressed sequence tags, or ests) for genes ex- pressed in human tissue samples. 6 For a definitive account of the origins of the Human Genome Project, see Robert Cook- Deegan, The Gene Wars: Science, Politics, and the 7 Two recent histories offer excellent Human Genome (New York: W. W. Norton, overviews of these events. See Kevin Davies, 1994). For an early analysis of the project from Cracking the Genome: Inside the Race to Unlock leading scientists, see National Research Coun- Human DNA (New York: Free Press, 2001); and cil, Mapping and Sequencing the Human Genome Gary Zweiger, Transducing the Genome: Informa- (Washington, D.C.: National Academy Press, tion, Anarchy, and Revolution in the Biomedical 1988). Sciences (New York: McGraw-Hill, 2001).
94 Dædalus Spring 2002 While academic researchers debated pursue a “whole-genome shotgun se- Public vs. proprietary the wisdom of pursuing this strategy quencing” strategy that Venter had used science given available technology, resources, successfully to sequence microbial and priorities, private investors seized genomes.8 Like cdna sequencing, the opportunity to bypass skeptical gov- whole-genome shotgun sequencing was ernment sponsors and peer reviewers a strategy that the academic community and created a nonpro½t research institu- had so far passed up for the human tion to support Venter’s work, reserving genome,9 leaving an opportunity on the commercial rights for Human Genome table that private investors seized. But Sciences. This and similar efforts created this was a more surprising plan from a valuable private databases of informa- business perspective. By this time cdna tion, but academic institutions soon sequencing had revealed many of the complained about the restrictive terms commercially promising genes (and gen- of access offered by the database own- erated patent applications on them). ers. Although more genes were expected to In the mid-1990s, when new technolo- surface in the course of completing the gy made it feasible to detect and identify genome, most of the remaining se- single base-pair differences in the dna quence was presumed to be “junk dna” of different individuals (single nucleo- of greater interest to scientists than to tide polymorphisms, or snps), private investors. Nonetheless, investors were ½rms invested in snp identi½cation. suf½ciently optimistic to drive the mar- Like gene fragments, snps promised to ket capitalization of Celera up to over be a valuable information resource for two billion dollars by the end of 1999. both academic research and product The sponsors of the Human Genome development. Recent experience with Project responded by accelerating and proprietary databases of gene fragments increasing their ½nancial commitments led some scientists to worry that propri- to complete the public version of the etary snp collections might not be ac- sequence more rapidly. At ½rst, they crit- cessible to them on reasonable terms, icized Celera’s proposed sequencing prompting the public Human Genome strategy, charging that it would leave Project to compete with the private sec- signi½cant gaps in coverage that would tor by allocating some of its own funds be dif½cult and costly to ½nish. Soon, to snp identi½cation. however, the public project changed its In May of 1998, just as the public own course in order to provide an un- Human Genome Project had completed ½nished “rough draft” of the genome as its initial mapping goals and was enter- quickly as possible. The two groups ing the phase of large-scale sequencing claimed substantial completion of their of the genome, a new private company respective efforts in simultaneous publi- came on the scene with the goal of com- pleting the sequence several years ahead 8 J. Craig Venter et al., “Shotgun Sequencing of of the public project–under the scien- the Human Genome,” Science 280 (1998): ti½c direction of Craig Venter, who by 1540–1542. then had left the nih. The new compa- 9 See James L. Weber and Eugene W. Myers, ny, to be called “Celera” after the Latin “Human Whole-Genome Shotgun Sequencing,” word for speed, would use a new genera- Genome Research 7 (5) (1997): 401; Philip Green, tion of dna-sequencing machines and “Against a Whole-Genome Shotgun,” Genome Research 7 (5) (1997): 410.
Dædalus Spring 2002 95 Rebecca S. cations in Science and Nature in February patent applications on the ½rst few hun- Eisenberg & 10 Richard R. of 2001. dred gene fragments (or ests) se- Nelson on The brief history of public and private quenced by Craig Venter. This was a intellectual involvement in sequencing the human provocative act on many levels. The property genome shows conflicting views from patent ½lings, although consistent with the two estates regarding the importance u.s. laws encouraging government agen- of making knowledge freely available in cies to patent discoveries and license the public domain. Free access to the them for commercial development,11 genome has been a mantra within the were in tension with rhetorical justi½- public genome community, repeatedly cations for public funding of the Human invoked as a motivation for accelerated Genome Project to ensure public access disclosure policies and justi½cation for to the sequence. Foreign governments accelerated funding to complete the viewed the patent ½lings by a u.s. gov- sequence before private competitors ernment agency as inconsistent with capture it as a proprietary resource. efforts to promote the Human Genome Although it is a common ploy to invoke Project as an international collaboration public-spirited justi½cations in support to reveal the universal heritage of hu- of requests for public funding, it is hard- manity. Patent claims for the discovery er to dismiss the many concurring views of mere fragments of genes struck many emanating from the private sector, scientists as a premature reservation of sometimes backed by private funds to commercial rewards for incomplete generate information in the public research results that were not yet mean- domain. ingful and required further research to From the beginning, scientists worried identify useful applications. Industry that it would be dif½cult to enforce trade groups feared that patents on gene norms of public disclosure and access fragments would inhibit research to for sequences generated by different sci- understand the role of genes in disease entists in different institutions. The and would add to the costs of drug usual trigger for disclosure in academic development. research–publication of results–would Databases of ests quickly proved to not serve as a timely enforcer for release be a valuable information resource for of accumulating data that might not be both private and academic scientists. But ripe for journal publication until long the two groups faced different con- after it was generated. The presence of straints on their ability to gain access to commercial interests and the looming the proprietary databases. As pharma- prospect of intellectual property claims ceutical ½rms signed database access heightened these concerns. agreements with price tags ranging from Controversy over the public or private under $10 million to over $100 million, character of the genome erupted more academic institutions balked at signing urgently in 1991 when the nih ½led agreements that would commit them in advance to share future intellectual 10 J. Craig Venter et al., “The Sequence of the Human Genome,” Science 291 (16 February 11 See Bernadine Healy, “Special Report on 2001): 1304–1351; International Human Gene Patenting,” New England Journal of Medi- Genome Sequencing Consortium, “Initial cine 327 (1992): 664; and Reid G. Adler, sequencing and analysis of the human “Genome Research: Ful½lling the Public’s genome,” Nature 409 (15 February 2001): Expectations for Knowledge and Commercial- 860–921. ization,” Science 257 (1992): 908–912.
96 Dædalus Spring 2002 property rights with the database own- cumbersome provision, the nih took a Public vs. proprietary ers. Finally, in a dramatic inversion of different approach. In its request for science traditional public and private roles, the grant applications, the nih stressed the Merck pharmaceutical ½rm agreed to importance of making snp information sponsor a competing cdna sequencing readily available to the research commu- effort at Washington University, with nity, advised grant applicants that their newly identi½ed sequences to be plans for sharing results would be con- promptly disclosed in a public data- sidered by nih staff as one of the criteria base.12 Paradoxically, a controversy that for an award, and warned that the nih began with patent ½lings from a govern- would monitor grantee patenting activi- ment agency ultimately gave way to an ty.15 This approach was arguably in ten- extraordinary private-sector endorse- sion with the spirit, if not the letter, of ment of the value of the public domain. the Bayh-Dole Act. Ultimately, the pri- Another variation on traditional pub- vate sector again came to the rescue of lic and private roles occurred a few years the public domain with the formation of later when ten pharmaceutical ½rms the snp Consortium, which unabash- joined the Wellcome Trust Foundation edly proclaims a strategy of identifying to form the snp Consortium, a private and disclosing snps in order to prevent venture to identify common points of other ½rms from patenting them. Once variation in the human genome for dis- again, in the Bayh-Dole era it appeared closure in the public domain. snp iden- to be simpler for private ½rms to endow ti½cation had begun as proprietary re- the public domain than it was for the search in the private sector, provoking federal government to do the same. the public Human Genome Project to The importance of public access to the call for a consortium of federal agencies human genome ½gured prominently in to fund snp discovery and to place the the case for continued funding of the results in unrestricted public databas- public Human Genome Project follow- es.13 The candid justi½cation for public ing Celera’s entry into the ½eld. Celera’s funding was to prevent private appropri- founders acknowledged the importance ation of snps as intellectual property. of free access by promising initially to But this strategy was constrained by the release Celera’s raw sequence data to the Bayh-Dole Act, which allows grant re- public on a quarterly basis,16 although cipients to retain title to inventions the timing and details of this commit- unless the funding agreement speci½es ment wavered thereafter. The public otherwise based upon an appealable sponsors of the Human Genome Project ½nding of “exceptional circumstances.”14 stressed the importance of prompt and Loath to invoke this rarely used and unrestricted access to the sequence,
12 Eliot Marshall, “A Showdown Over Gene 15 National Institutes of Health RFA HG-98- Fragments,” Science 266 (1994): 208–210. 001, “Methods for Discovering and Scoring Single Nucleotide Polymorphisms” (9 January 1998)
Dædalus Spring 2002 97 Rebecca S. which they ensured by requiring strain Celera’s market power in ways Eisenberg & Richard R. grantees to deposit new sequence data in that make the proprietary data more Nelson on the publicly accessible Genbank data- affordable for all researchers. intellectual base within twenty-four hours.17 Cel- The story of the Human Genome property era’s business model, which involves Project in the public and private spheres selling access to proprietary data and is not yet over. Although most of the bioinformatics capabilities that sub- genome has now been sequenced, the scribers would not pay for if they could hard work of ½guring out what it all get them for free, constrains its disclo- means has barely begun. So far, the most sure policies. Although Celera’s promised signi½cant intellectual property con- quarterly data releases never occurred, straint on use of the sequence in re- Celera agreed to provide limited access search has come from the terms of data- to its data free of charge on its own web base access agreements rather than from site as a condition of publication in patents. But many patent applications Science, subject to restrictions that pre- are pending on genes, gene fragments, served the market for its proprietary snps, and even dna sequences stored in products. computer-readable medium, and many Celera has had more success than prior of these patent applications were ½led owners of proprietary genomics data- before the same sequences were deposit- bases in marketing database access ed in Genbank. Although the patenting agreements to academic and govern- of dna molecules that encode therapeu- ment subscribers. It has made agree- tic proteins is a well-established prac- ments on undisclosed ½nancial terms tice, the patentability of dna sequences with a number of major research univer- with more speculative utility is much sities and academic hospitals, as well as contested and has not yet been ad- with the National Cancer Institute. Evi- dressed by the courts. Depending on dently Celera has something to sell over how these issues of patentability are and above the information and tools that resolved, scientists might soon discover are freely available from Genbank, and that they need patent licenses to make evidently Celera’s terms of access are not use of sequences they thought were in prohibitive for publicly funded investi- the public domain. gators. Celera’s database should be at Although it may never be known least as good as the public database, whether public or private research given that Celera itself has free access to efforts ultimately contribute more to Genbank. At the same time, the exis- future biomedical research and product tence of a public database with much of development, it is probably safe to say the same information presumably limits that neither of these efforts would have what subscribers are willing to pay (and achieved as much as quickly without the what Celera is able to demand) for other. Apart from providing additional access to the proprietary database. The and complementary capabilities and existence of Genbank may thus con- enabling technologies, the private sector has repeatedly provided funding for pro- 17 Testimony of Francis S. Collins, Director, ductive research strategies that public National Human Genome Research Institute, at sponsors passed over. a Hearing on the Human Genome Project In a Big Science project that allocates before the Energy and Environment Subcom- mittee of the House Science Committee, 17 June government research funds according to 1998 (Lexis). a coordinated plan, the existence of a
98 Dædalus Spring 2002 vigorous private-sector research enter- ly separate estates, one might preserve Public vs. proprietary prise limits the risk that good ideas will an open domain for science by limiting science go unfunded, at least when they offer a what may be patented to technology reasonable chance of yielding practical while relying on public funding to pro- payoffs. The peer-review process for mote science. This is arguably the intu- allocating government research funds ition behind traditional legal exclusions does much to ensure the political inde- from patent protection for natural prod- pendence and high quality of public sci- ucts and laws of nature and for inven- ence, but it may tend to favor conven- tions with no demonstrated practical tional approaches and prevailing beliefs utility.18 But steady pressure to provide over bold new ideas. Competition patent protection for discoveries in among researchers pursuing different Pasteur’s quadrant has eroded these strategies with similar goals speeds sci- restrictions. Perhaps the erosion has ence along and improves the likelihood gone too far. of success. Long before the advent of commercial At the same time, freely available data genomics, the courts had narrowly con- from the Human Genome Project has strued the exclusion dealing with prod- undoubtedly accelerated research in ucts of nature to uphold patents on both the public and private sectors. In puri½ed preparations of products isolat- addition to providing a free resource for ed from nature.19 Although intuitively users of genomic information, it has appealing, excluding the stuff of nature improved the completeness of propri- from patent protection has no clear basis etary databases (by providing data that in the patent statute, and judicial opin- owners may incorporate in proprietary ions recognizing the exclusion have products and by setting a benchmark failed to articulate a consistent rationale that they must exceed in order to have for it. It has thus been vulnerable to the something to sell) and improved terms same systematic erosion of judicial lim- of access to proprietary databases (by its on patentability that has recently providing a free alternative that limits made way for patents on computer algo- how much owners may demand). rithms and business methods.20 Although proprietary databases might The utility requirement has a clear be more pro½table if there were no statutory basis,21 and academic scien- Genbank, the free database plainly has tists have urged the pto to use this neither destroyed the market for propri- etary databases nor undermined incen- 18 On exclusions from patent protection for natural products, see Funk Bros. Seed Co. v. Kalo tives to create them. Inoculant Co., 333 US 127 (1948). On patents on inventions with no demonstrated practical Numerous public-policy choices deter- application, see Brenner v. Manson, 383 US 519 mine the balance between public and (1966). private research in Pasteur’s Quadrant. 19 E.g., Merck & Co. v. Olin Mathieson Chemical These choices include legal rules about Corp., 253 F2d 156 (4th Cir 1958) (upholding what may be patented and how patents patentability of puri½ed vitamin B12). are used and managed, as well as deci- 20 See State St. Bank & Trust v. Signature sions about what kinds of research the Financial Group, 149 F3d 1368 (Fed. Cir 1998), government will fund and what strings cert. denied, 515 US 1093 (1999); AT&T Corp. v. are attached to public funding. Excel Communications, Inc., 172 F3d 1352 (1999). If science and technology were entire- 21 35 US Code §§ 101, 112.
Dædalus Spring 2002 99 Rebecca S. requirement to reject patent claims on ries be treated similarly? Should patents Eisenberg & Richard R. dna sequences until their biological on research tools that have no signi½cant Nelson on function is understood. But an appellate market outside the research community intellectual court sharply rebuked the pto just a few be subject to a research exemption that property years ago for applying a strict utility effectively eviscerates their commercial standard to biotechnology products; the value? The Human Genome Project court reminded the pto that “usefulness offers numerous examples of patented in patent law, and in particular in the research tools that were marketed to context of pharmaceutical inventions, both academic and commercial re- necessarily includes the expectation of searchers to the great bene½t of the further research and development.”22 At research community. Such tools might least as presently understood, the utility never have been developed without requirement does not seem to preclude patents, making the ultimate impact on patenting fundamental discoveries with research of such a change in the law practical implications that remain un- dif½cult to predict. On the other hand, proven. many important research tools have These time-honored limitations on the come out of government-funded univer- reach of the patent system have arguably sity research, and their invention been degraded without explicit attention arguably did not require patent protec- from Congress and may now need to be tion. forti½ed to preserve the freedom of sci- Yet another option, which would not entists to study the natural world. A nec- require changing the patent rights of pri- essary ½rst step would be a careful analy- vate ½rms, would be to provide public sis of the purposes these rules serve in funding to generate research results in mediating the public-private divide in the public domain, even if the private science and technology. On one hand, sector is already performing similar withholding patent protection could research on a proprietary basis. prove costly if it undermines private This was ultimately the strategy pur- R&D incentives. On the other hand, the sued by the public sponsors of the bene½ts to future research and product Human Genome Project, although they development of preserving the scope had to maneuver around the Bayh-Dole and vigor of public science might out- Act to do it. The extraordinary commit- weigh these costs. ment in the scienti½c community to Another option would be to carve out making the human genome sequence an exemption from infringement liabili- freely available offered the sponsors pro- ty for researchers. Ideally, this approach tective cover for a policy that grantees would retain effective protection against might otherwise have challenged as con- competition in the commercial market- trary to the law. But if the Bayh-Dole Act place while minimizing the impact of impedes the ability of public research patents on the research community. sponsors to enrich the public domain of But it is dif½cult to de½ne the proper science, perhaps it needs revision. scope of such an exemption when there The flourishing of a robust private is no clear line between the commercial genomics industry alongside the public and research spheres. Should researchers Human Genome Project calls into ques- in academic and commercial laborato- tion the strong presumption under the Bayh-Dole Act that the results of govern- 22 In re Brana, 51 F3d 1560 (Fed. Cir 1995). ment-sponsored research must be pat-
100 Dædalus Spring 2002 ented in order to preserve incentives for experts operating under the critical Public vs. proprietary follow-on research in the private sector. scrutiny of their peers. It is a shared science That the pharmaceutical industry has archive of an expanding knowledge repeatedly conspired with public spon- base, a training ground for future re- sors to get genomic information into the searchers, and the germ from which public domain at its own expense is future advances in human understand- compelling evidence that proprietary ing will grow. Its social value does not control of information can impose sig- depend on the ultimate pro½tability of ni½cant costs on subsequent research the advances it spawns. If we need and thereby obstruct, rather than pro- pro½t-seeking ½rms to tell us that the mote, product development. public domain has value, something But public science is more than a pre- important is missing from our under- lude to product development. At its best, standing of science. it is a social commitment to disinterest- ed investigation of the world by credible
Dædalus Spring 2002 101 Marcia Angell & Arnold S. Relman
Patents, pro½ts & American medicine: conflicts of interest in the testing & marketing of new drugs
In the fall of 2001, the editors of thir- ical education, and clinical practice. At teen of the world’s medical journals the center of the story are the industry’s made headlines when they jointly attempts to exploit and extend patents announced that they would not publish on new brand-name drugs. These pat- research reports about new prescription ents are one of the most lucrative forms drugs unless the authors provided assur- of intellectual property in America ance that they had full access to the data today. This essay describes what hap- and were responsible for the work. pens when the drive to bring patented This extraordinary step was a reaction new drugs to market begins to control to the growing control over clinical trials medical institutions and professionals by corporate sponsors. Some of these who are supposed to be independent and sponsors do not permit investigators to unbiased. see all of their own data, or to publish papers without prior approval. The public agency responsible in the The action of the editors–and the rea- United States for overseeing the produc- son for their action–is merely one as- tion and marketing of prescription drugs pect of the story of the enormous eco- is the Food and Drug Administration nomic power now wielded by the phar- (fda). For most of its existence, the fda maceutical industry over research, med- has had the authority to regulate manu- facturing standards and to require drug companies to prove the safety of their Marcia Angell, md, is Senior Lecturer in the products. Department of Social Medicine at Harvard Med- In recent decades, the fda has also ical School and a former editor in chief of the usually required that the effectiveness of “New England Journal of Medicine.” A predeces- a newly patented drug be demonstrated sor in that post was Arnold S. Relman, md, Pro- in clinical trials, the results of which are fessor Emeritus of Medicine and of Social Medi- submitted to the fda and often pub- cine at Harvard Medical School, who has been a lished in peer-reviewed medical jour- Fellow of the American Academy since 1965. In nals. Although some of the most impor- the past two decades, Angell and Relman have tant clinical trials are supported by the played leading roles in criticizing the ½nancial ties National Institutes of Health (nih), the of medical researchers and academic institutions vast majority are sponsored by drug to the pharmaceutical industry. companies.
102 Dædalus Spring 2002 In the year 2000, the pharmaceutical bill, and they will soon replace physi- Patents, profits & industry spent about $3.77 billion on cians’ fees as the largest item on the bill, American grants for clinical trials, compared with apart from the cost of hospitalizations. medicine $750 million spent by the federal govern- Prescription drug costs are a major and ment through the nih. But even when a growing burden on individual patients clinical trial is paid for by a drug compa- and on public and private health insur- ny, the trial itself normally requires the ers. As a result of these facts, the public participation of physicians and other has an interest in prescription drugs that experts. Many of these experts teach in it has in few, if any, other patented prod- academic medical centers, where the tri- ucts. als are designed and conducted. Increas- Patents are the lifeblood of the drug ingly, however, the researchers are doc- industry. Without a patent, a company tors in private practice, who participate has no incentive to bring a drug to mar- in clinical trials organized by private ket. Patents, which are now usually research companies. granted for twenty years, give a company The fact that investor-owned busi- a monopoly that protects them from nesses sponsor most of the clinical trials competitors as they develop the product that bring newly patented drugs to mar- and carry out the clinical trials necessary ket presents multiple conflicts of inter- for fda approval. Once approved, the est for nearly everyone involved. That drug can be sold on the market for the includes the drug companies them- remaining lifetime of the patent, with- selves, whose essential business mission out risk of duplication by competitors. is to sell pro½table drugs–not necessari- In addition, the effective patent life of ly those that are optimally useful in med- many drugs is often extended by speci½c ical treatments. It also includes the clini- statutes and fda regulations. The only cal investigators who receive funding price constraints–and they are weak– from the companies to study the drugs, are those provided by a few competing yet are supposed to be impartial, and the companies with similar patented drugs academic medical centers where much and the pressures from large purchasers (but by no means all) of this work is for bulk discounts. The theory behind done. Medical educators also ½nd them- patents and other forms of exclusivity is selves with conflicts, since they receive that they will provide an appropriate but industry support to conduct educational limited incentive for companies to programs for doctors. And practitioners develop important and innovative new are constantly risking compromise by drugs. But, as we will explain later, the accepting the favors lavished on them by theory does not always work out in prac- an industry determined to influence tice. their professional judgment. Most innovative drugs–that is, drugs that act in a different way from anything For millions of Americans, many of the on the market–are now developed ini- drugs marketed by the pharmaceutical tially with nih research funding, usually companies are essential for health, and in academic medical centers. The drugs even for life. Unlike most commodities, are then licensed to drug companies to prescription drugs are often not optional be further developed and brought to goods. Furthermore, expenditures for market. drugs now account for the fastest-grow- This subsidization of drug companies ing component of the national health by the taxpayers became of½cially sanc-
Dædalus Spring 2002 103 Marcia tioned by Congress in 1980, when the interpreted this as a justi½cation for Angell & Arnold S. Bayh-Dole Act was passed. Among other some sort of price restrictions on drugs Relman on things, the Bayh-Dole Act (in conjunc- licensed to industry under the terms of intellectual tion with the lesser-known 1980 Steven- Bayh-Dole. In addition, the research property son-Wydler Act and several subsequent institutions were supposed to keep the amendments) permits academic medical government informed of all patents they centers to patent drugs discovered obtained on nih-funded work. Togeth- through nih-funded basic research. The er, Bayh-Dole and Stevenson-Wydler academic centers are then permitted to contained provisions that would allow license these drugs to private companies the public to recoup a portion of pro½ts and receive royalties–which are shared under certain limited circumstances. with the investigators who conducted In practice, virtually all of these provi- the research. The nih itself is also per- sions have been ignored or revoked. In mitted to set up collaborations with 1995, the nih itself advised against industry and to license drugs developed requiring “reasonable pricing,” and in a in its intramural program. report last year, it argued against trying The ostensible purpose of the Bayh- to recoup a portion of pro½ts. It empha- Dole Act was to hasten the transfer of sized that only four of forty-seven drugs technology from government or aca- with yearly sales above $500 million demic laboratories to the marketplace. were known to have been developed There was a general perception that the with nih funding. What was not empha- United States was lagging behind other sized was the fact that there was no way parts of the world, especially Japan, in of knowing about the other forty-three technology transfer. Whether that was drugs, since the nih had not required true of the development of important the medical centers to ful½ll their obliga- new drugs is doubtful. The academic tion to supply information about patents medical centers and their faculty never- they had obtained on taxpayer-funded theless warmly embraced the Bayh-Dole work. Act–and so did the pharmaceutical The chief effect of the Bayh-Dole Act industry. has been to increase dramatically the Once public institutions had decided number of partnerships between aca- to join the drug companies in seeking demic institutions and the pharmaceuti- patents whenever possible, little atten- cal industry. There were many reasons tion was paid to some of Bayh-Dole’s why the drug industry wanted closer col- constraints, particularly those that laboration with medical institutions, but established the right of taxpayers to one was the need for companies to ob- some sort of accountability, and also to tain human subjects for the clinical trials some sort of return on their investment. they needed to get fda approval. Drug Among these neglected provisions of the companies have money to support clini- law was the requirement that the bene- cal research, but they don’t have pa- ½ts of the “invention” be made “avail- tients, so they need to look for them able to the public on reasonable terms.” elsewhere. As the number of drugs being If that provision were violated, the law tested grows, so does the number of clin- said, the government could “march in” ical trials, and human subjects are be- and reassign the patent. The government coming increasingly dif½cult to ½nd. also retained the rights to use the prod- Teaching hospitals are an important uct itself. Some commentators have source, although no longer the only one.
104 Dædalus Spring 2002 linical trials have become a multibil- companies to win back the business Patents, C profits & lion-dollar business, involving tens of being lost to cros and other private re- American thousands of investigators and millions search businesses. Conducting clinical medicine of human subjects. There are now per- trials for industry is a good source of rev- haps as many as sixty thousand ongoing enue to help offset losses from low clinical trials (no one knows the exact Medicare and managed care reimburse- number). ment. Some academic medical institu- Since companies usually sponsor trials tions are even setting up separate clinical only after they obtain patents, the time research organizations to provide a con- spent in trials eats directly into the time venient, single access point for drug they have to market the drug with the companies and to provide them with the protection of a patent. Consequently, the administrative services they need to deal drug companies are in a great rush to get with the fda. the trials done, and the rate-limiting fac- Many institutions are also permitting tor is the dif½culty in acquiring human drug companies to attach strings to their subjects. In fact, to ½nd subjects, drug grants that were unheard of just a few companies routinely pay bounties to years ago. For example, in some arrange- doctors–anywhere from $500 to ments with academic institutions, the $15,000 per subject enrolled–plus large companies may design their own trials, bonuses for rapid enrollment. retain and analyze the data, write the Because the drug companies are in papers or at least review them before such a rush, they can no longer rely publication, and even decide whether to exclusively on academic medical centers allow publication at all. Under such con- to conduct the trials. They ½nd they can ditions, investigators become little more get much faster service in the private than hired hands, and their institutions sector. In just the past decade, the frac- little more than drug company outposts. tion of industry-sponsored trials done in These are the abuses that provoked med- academic medical centers has dropped ical editors around the world to issue the from 80 percent to less than 40 percent. announcement we mentioned at the Many clinical trials are now organized start of this essay. instead by hundreds of for-pro½t compa- nies, called contract research organiza- We have pointed out that many of the tions (cros). These companies often really innovative drugs are derived from work with other companies that recruit nih-funded research. For example, the human subjects through the media. anticancer drug Taxol was developed at cros also organize community doctors Florida State University with nih funds, to supply patients and collect data, or then licensed to Bristol-Myers-Squibb. they work with still other satellite com- Indeed, nearly all of the major anti- panies that do. These community doc- cancer and anti-aids drugs were devel- tors have become an army of amateur oped with the help of nih funding. investigators. There are now about ½fty What about the others? Nowadays, thousand clinical investigators regis- while some new drugs coming out of the tered with the fda, many of whom are pharmaceutical industry pipeline repre- community doctors involved in their sent important new discoveries, most ½rst clinical trials. “new” drugs being developed by indus- Academic medical centers are trying try are not really new–they are simply to be more accommodating to drug variations on an existing theme. In fact,
Dædalus Spring 2002 105 Marcia the number of innovative drugs reaching The pro½ts of the drug companies also Angell & Arnold S. the market has actually declined over the greatly exceed the money spent on R&D; Relman on past several years, from a high of ½fty- on average, pro½ts equal 19 percent of intellectual three per year in 1996 to twenty-seven in revenues. property 2000. The industry claims it spends $500 At the same time, the market is being million on each new drug brought to flooded with highly pro½table drugs that market, counting expenditures on fail- usually belong to a family already on the ures. But most independent analysts market. For example, Claritin, one of the believe that to be a highly inflated ½gure, most pro½table of all proprietary drugs, and estimate the real ½gure to be closer is simply one of a number of similar to $100 million. Regardless of what it is, antihistamines used to treat allergies. the industry reaps huge pro½ts. That fact Top-selling drugs like Claritin are often would certainly seem to belie the con- called “blockbusters,” and it is a reveal- tention of the drug companies that the ing commentary on the pharmaceutical high prices they charge are needed to industry that most blockbusters are offset the costs of their R&D. competing with several other, similar drugs that are also very pro½table. Thus, A large share of the marketing budget the two blockbusters Zocor and Lipitor of the pharmaceutical industry, about are members of a family of statins– $15 billion annually, is spent on wooing drugs that lower blood cholesterol levels physicians in a variety of ways that cause by inhibiting production of cholesterol serious conflicts of interest for the med- in the liver. And the antidepressant ical profession. blockbusters Zoloft and Paxil share a One of the principal ways is through common mechanism of action with educational programs. Physicians are Prozac, itself a mega-blockbuster antide- required to obtain “continuing medical pressant that recently came off patent. education” (cme) to renew their licens- Drugs with similar actions (and fre- es. Increasingly, drug companies help quently with similar or related chemical fund and thereby influence these pro- structures) are often referred to as grams, which are usually sponsored by “copycat” or “me-too” drugs. They are hospitals and medical schools. Physi- far easier to turn out than innovative cians are often enticed to attend these drugs, although they require huge mar- cme programs with free meals and other keting campaigns to persuade doctors favors and gifts. Drug companies also and patients to choose one over the help professional societies with the ex- other. In contrast, marketing costs for a penses of scienti½c meetings, and they truly groundbreaking drug, like a cure conduct their own satellite educational for cancer, would probably be small, programs at those meetings. Most such because the drug would sell itself to meetings also feature commercial dis- physicians and the public–based on the plays and eager salesmen pitching their published scienti½c evidence of its safety company’s products. The problem with and effectiveness. drug company involvement in cme is Marketing and administrative costs that sponsoring companies cannot be now equal roughly 30 percent of the rev- expected to evaluate their own drugs enues of the major drug companies, objectively, particularly in comparison while research and development (R&D) with competitors’ drugs. Yet the impar- amount to only 12 percent of revenues. tial, comparative evaluation of drugs
106 Dædalus Spring 2002 should be an important function of cme tainly increases the costs of care. Patents, profits & programs. Drug companies owe it to their American Another expensive avenue by which investors to produce pro½table drugs. medicine drug companies seek to influence the But as the successful marketing of me- prescribing practices of physicians is too drugs shows, a drug need not be through what is called the “detailing” of especially medically useful to be pro½t- practitioners in their private of½ces. This able. In fact, one way to increase pro½t- involves more than eighty thousand ability is to market drugs for minor ail- drug company representatives, who, at ments aggressively. After all, there are an annual cost of several billion dollars, more healthy people than seriously ill visit doctors’ of½ces to tout their compa- ones–at least in countries where people ny’s drugs and to gain favor by plying can afford to purchase expensive drugs. doctors with free samples and other Therefore, an antihistamine or an agent gifts. that claims to help irritable bowel syn- Hoping to gain their share of a com- drome or one that dampens premenstru- petitive market full of similar drugs, the al mood swings has a much larger poten- drug companies ½nd detailing to be an tial market than a drug for a serious ill- effective technique for influencing prac- ness. titioners’ choices. But when doctors accept favors and receive information A critical task for the drug companies about drugs from company salespeople, is to obtain patents on me-too drugs or they risk abdicating their responsibility to extend patents on successful drugs. to their patients, who have a right to The drug companies accomplish this in a assume that physicians will rely on their variety of ingenious ways. They try to own interpretation of the best available ½nd slightly new uses for old drugs or information rather than on information sell them in new combinations or dosage supplied by necessarily biased drug com- forms. Eli Lilly’s newly patented Sara- panies. fem is the same drug as Lilly’s Prozac, Still another method used by drug which has just gone off patent, but Sara- companies to promote the prescribing of fem is sold for premenstrual syndrome their top-selling drugs is to advertise instead of depression. The antidiabetes directly to consumers in the popular drug Glucophage XR is Bristol-Myers- media. In recent years, much money has Squibb’s newly patented once-daily re- been poured into an effort to persuade placement for the twice-daily Gluco- people to “ask your doctor about” a wide phage, whose patent recently expired. variety of drugs for common conditions. Except for their duration of action, the The medical information conveyed in two drugs are the same. these ads is fragmentary and sometimes Two years ago, the Wall Street Journal misleading. The purpose, of course, is to reported a proposed complicated busi- increase popular awareness of a brand- ness deal between Merck and Schering- name drug, which will then lead physi- Plough for the marketing of two new cians to prescribe that brand in order to drug combinations, one to lower serum satisfy consumer demand. This practice lipid levels and the other to relieve aller- ½ts well with the currently popular no- gies. Each combination would pair one tion of “consumer-driven” health care, company’s blockbuster drug, whose but it contributes little or nothing to the patent as a single product will soon quality of medical services, and it cer- expire, with a drug with supplementary
Dædalus Spring 2002 107 Marcia action owned by the other company. The The quid pro quo is simple: in return for Angell & Arnold S. combination drugs would have new the fees, the fda reviews more drugs Relman on patents, and their pro½ts would be more quickly. Since 1992, the fda has intellectual shared by both companies. doubled the number of drugs reviewed property Not satis½ed with twenty-year patents, annually, and cut in half the time spent the industry tries to extend them in on the average drug review. (In the past other ways. The most direct but least year or so, in the wake of several widely certain way is to have a friendly member publicized withdrawals of drugs found of Congress introduce a bill to extend to be dangerous, the fda has slowed the patent on a particular drug. Other down a little.) methods are less direct but more effec- tive. Thanks to a 1997 law, drug compa- One can see from this brief overview nies that agree to test their drugs in chil- of the clinical research system that it is dren automatically receive an extra six permeated with ½nancial conflicts of months of exclusivity–even if the drug interest. Drug companies exert a major would rarely be prescribed for children. influence over the evaluation of their Companies also routinely ½le patents own products, either indirectly or direct- on some trivial feature of their brand- ly, through for-pro½t organizations that name drugs–for example, the shape of are dependent on them. Yet the ½duciary the tablets–and then sue a generic com- responsibility of the drug companies is pany for patent infringement when it is to increase the value of their stock. It is about to enter the market. The suit auto- not to provide unbiased evaluations of matically extends the patent for another their own products. thirty months, or until the case is re- Even the nonpro½t academic medical solved. When patents ½nally do expire, centers, now facing hard times in the according to allegations in several law- managed care environment, are so eager suits ½led by consumer groups, drug for drug company business that they are companies sometimes collude with ceding substantial control to the compa- generic companies to keep prices high. nies over the way academic research is In principle, both the fda and the u.s. conducted and reported. Researchers patent of½ce have the power to prevent who run the clinical trials in academic the kinds of abuses we have been de- centers are being allowed to enter into scribing–but in practice, neither agency ½nancial arrangements that compromise exercises it. Over the past decade, the their independence. Meanwhile, most of fda has become increasingly friendly the new, nonacademic researchers are with the industry it regulates. Indeed, it private practitioners with no research sometimes seems as if the fda views the experience who are paid large bounties drug companies, and not the American and bonuses for enrolling their patients public, as its primary client. in trials. There is some reason for that impres- Oversight of this situation falls, ½nally, sion. In 1992, Congress passed the Pre- to the fda–an agency now partially scription Drug User Fee Act. This act supported by the industry it regulates. requires drug companies to pay a user That support is precarious and almost fee–currently it is more than $300,000– certainly conditional on the agency’s to the fda for every drug the agency cooperation with industry. The Pre- reviews. Such fees at present constitute scription Drug User Fee Act must be about half the budget of the fda’s drug renewed by Congress every ½ve years. review center. But as the fda well knows, the pharma- 108 Dædalus Spring 2002 ceutical industry has enormous clout on The publicized cases concern investi- Patents, profits & Capitol Hill. If the industry decided to gators who refused to tailor their results American withdraw its support for the Act, the to suit their sponsors. More worrisome medicine budget of the fda’s drug review center are the cases of investigators who quietly would be slashed, and many people allow negative results to be suppressed, would lose their jobs. or who publish misleading work. Several These conflicts of interest are having studies have shown that papers with exactly the effects on clinical research industry support are much more likely that might be predicted, and some of the to favor the company’s product than consequences are worth emphasizing. papers with nih support. Bias may be First, drug companies now broadly extremely dif½cult to detect, particularly influence the kind of research being when it involves selecting only certain done. Drug companies are increasingly data to present. (Having exclusive con- funding trials not to discover new agents trol of the data, as drug companies often and new approaches to treatment, but to do, makes surreptitious selectivity all too get fda approval of me-too drugs and to easy.) buttress marketing claims. For example, There is also evidence that human sub- huge trials may be undertaken to show jects are being enrolled in clinical trials that a new statin is in some way margin- for which they are not eligible–for ally better than the other ½ve already on example, because they do not have the the market. The research may result in disease in question. According to a re- successful marketing campaigns but is cent Inspector General’s report, physi- unlikely to yield much of any scienti½c cians in one study stood to make a or clinical value. $30,000 bonus when they enrolled their Second, there is growing evidence that sixth patient. Under those circum- ½nancial conflicts of interest are com- stances, it’s hard to imagine that eligibil- promising the integrity of the clinical ity criteria will not sometimes be research enterprise. As we have noted, stretched. drug companies now often control how and whether research is reported. Many What we have, then, is a system rid- clinical trials are never published be- dled with abuses and conflicts of interest cause the results do not favor the spon- and badly in need of reform. How sor’s product. There have been several should it be changed? widely publicized cases of investigators First, we believe the Bayh-Dole Act who published negative results anyway should be enforced in all its original pro- and were harassed by their industry visions, not just the ones that are lucra- sponsors for doing so. For example, tive for industry and academic institu- investigators in a recent trial of an hiv tions. Provisions that should be enforced vaccine refused to allow the company to include: 1) the stipulation that the gov- alter the report to make it more favor- ernment be noti½ed of all patents ob- able to the vaccine. The company then tained that are based on publicly funded tried to stop publication altogether. research, and 2) the requirement that the According to news reports, when the fruits of the research be available to the authors published anyway the company public on reasonable terms. In the stat- demanded $7 to $10 million in damages ute, the second provision is stated in on the grounds that publication had hurt only general terms, but it could be trans- the company’s ½nancial prospects. lated into speci½c regulations. Doing so
Dædalus Spring 2002 109 Marcia would help to ensure a reasonable quid dle the volume of industry-proposed Angell & Arnold S. pro quo between a protected and favored clinical trials, and that is true. But that Relman on industry and the public that supports it raises another issue. Is the volume of intellectual and depends upon it for products essen- clinical trials now being undertaken by property tial for medical care. the pharmaceutical industry reason- Second, we recommend that full con- able? Can we justify asking human sub- trol of clinical research be restored to the jects to participate in research that may medical institutions and the medical be quite trivial? professionals responsible for the health One way to winnow out the trivial and safety of the patients being studied. research is for the fda to require that The fda should not allow clinical trials clinical trials, wherever feasible, com- to be controlled by for-pro½t businesses pare the newly patented drug with the whose major or only clients are the drug best existing one, not with a placebo. companies. In other words, they should The fda could also require that approv- ban contract research organizations al of a drug be contingent upon a clini- (cros). cally signi½cant effect as well as a statis- That would leave several alternatives. tical one. For their part, the academic One would be to set up some sort of medical centers should not undertake independent public agency that would clinical trials unless they have some sci- function much as the cros now do, but enti½c merit. without having to compete for drug These reforms would cut down on the company business. Another alternative total number of clinical trials. They would be a return to the days when trials would encourage drug companies to were mainly done in academic medical concentrate their efforts on drugs of centers with arm’s-length drug-compa- potentially signi½cant medical value and ny funding. In those days, academic not spend so much of their resources on investigators designed the trials, ana- the development of drugs with more lyzed the results, wrote the papers, and commercial than medical promise. It is published them no matter what the out- understandable that the industry should come. They had no other ½nancial ties want to maximize its revenue, but not with the companies that funded the that a government agency or the aca- research, and neither did their institu- demic medical centers should be its tions. partners in this venture. The academic medical centers should Third, Congress should increase the not have strayed from this model in the fda’s budget, to enable the agency to ½rst place, despite their desire for drug expand its responsibilities. The fda company funding. In any case, fda ap- should be shored up as a truly indepen- proval of new drugs should be contin- dent agency. It should not be permitted gent on assurances that investigators are to continue down a road that will make not constrained by sponsors in the pub- it the captive of the drug industry. lication of study results and that they Accordingly, the Prescription Drug have no other ½nancial ties to the spon- User Fee Act should not be renewed in sors. This would add strength to the new 2002. The fda is, after all, a public policy announced by the group of med- agency charged with protecting the pub- ical editors. lic health. The support it now receives It will be protested that academic through user fees should be replaced by medical centers alone can no longer han- public funds, and increased.
110 Dædalus Spring 2002 Fourth, we think that the terms of the But the primary responsibility for Patents, profits & collaboration between academic medi- reforming the current troubled state of American cine and the pharmaceutical industry cme clearly lies with the medical profes- medicine need to be reevaluated. Academia and sion. The medical schools, the hospitals, the drug industry can serve the public and the professional organizations that interest well when they collaborate in ought to be responsible for the educa- research, but only when they do so tion of physicians should simply refuse under arrangements that keep their ½nancial help from the pharmaceutical separate missions distinct and do not industry, unless it is totally free of any encourage academic institutions or their industry participation. faculties to go into partnership with the companies or to become businesses We need to remember that the mis- themselves. sions of the drug companies and of aca- We believe that all ½nancial ties demic medicine, while in some respects between clinical investigators and the complementary, are in most respects companies whose products they are test- quite different. The primary mission of ing for clinical use should be prohibit- the pharmaceutical industry is to make ed–either by law, or through the joint money by developing, patenting, and policies of academic medical centers. then selling safe and effective drugs. The The only remedy proposed so far has best of these drugs may make an impor- been disclosure–to the institutions, to tant contribution to medical care. human subjects, and/or to the editors The mission of academic medical cen- and readers of medical journals. But dis- ters, which are almost all nonpro½t, is to closure will no longer suf½ce. The perva- educate physicians, advance medical siveness and influence of these ½nancial knowledge through basic and clinical associations, and the scope of the pub- research, and provide clinical care of the lic’s stake in the matter, demand highest quality. stronger action. We are convinced that Industry and the academic centers can the time has come simply to eliminate sometimes collaborate very fruitfully in all such conflicts of interest. research leading to the development of Fifth, and ½nally, we think it is time to new drugs. But if they wish to preserve separate continuing medical education the public’s trust, and if the centers want (cme) from the marketing of drugs. The public support, they should avoid ½nan- former is the responsibility of indepen- cial arrangements that blur the essential dent educational institutions; the latter distinctions between their separate mis- is the legitimate province of industry. sions. Unfortunately, competitive pres- The drug industry should not encroach sures in the health-care system and the on the intellectual independence of the lure of huge pro½ts from pharmaceutical medical profession–even if this means patents are causing industry and the that physicians have to assume more of academy to ignore this caution–with the ½nancial burden of their own contin- potentially grave implications for the uing education. public good.
Dædalus Spring 2002 111 Poem by Paul Muldoon
Unapproved road
I
When we came to the customs post at Aughnacloy, as at Cullaville or Pettigoe, I was holding my breath as if I might yet again be about to go
underwater . . . The fortieth anniversary of 1916 had somehow ½zzled out, the New Year’s Eve attack on Brookeborough ending in the deaths
of O’Hanlon and South, while Dev was likely to bring back internment without trial . . . As we drew level with the levelled shack
I was met by another black-coated, long fellow, though he wore a sky-blue winding-cloth or scarf wrapped round his mouth and nose, leaving only a slit for him to peer through.
II
“In the late ½fties I was looking for a place,” he nestled his coffee-cup on its zarf and turned to me, thirty years later, in Rotterdam . . . “An ancestral place . . . A place my ancestors knew as Scairbh
na gCaorach.” “Scairbh na gCaorach,” I chewed on my foul madams, “is now better known as ‘Emyvale’ though the Irish name means ‘the sheep-steeps’ or ‘the rampart of rams.’”
“‘Rampart of rams’? That makes sense. It was the image of an outcrop of shale with a particularly sheer drop that my ancestors, the ‘people of the veil,’
112 Dædalus Spring 2002 held before them as they drove their flocks from tier to tier Unapproved through Algeria, Mali and Libya all the way up to Armagh, Monaghan and Louth road with–you’ll like this–a total disregard for any frontier.”
III
“Patrick Regan?” A black-coated R.U.C. man was unwrapping a scarf from his mouth and flicking back and forth from my uncle’s licence to his face. “Have you any news of young Sean South?
The last I heard he was suffering from a bad case of lead poisoning. Maybe he’s changed his name to Gone West?” I knew rightly he could trace us by way of that bottle of Redbreast under my seat, that carton of Players, that bullion-chest of butter. I knew rightly we’d fail each and every test they might be preparing behind the heavy, iron shutters even now being raised aloft by men carrying belt-saws and blow-torches and bolt-cutters.
IV
As he turned to me again, thirty years later in Rotterdam, the Tuareg doffed his sky-blue scarf. “Back in those days I saw no risk in sleeping under hedges. As a matter of fact I preferred a thorn hedge to a hayloft because–you’ll like this–it reminded me of the tamarisks along the salt route into Timbuktu.” He crossed his forearms lightly under his armpits as if he might be about to frisk himself, then smiled as he handed me the sky-blue winding-cloth and a clunking water gourd. “It had been my understanding that Scairbh na gCaorach meant ‘the crossing of ewes’
Dædalus Spring 2002 113 Poetry by for scairbh means not ‘a ledge’ but ‘a ford’ or, more speci½cally, ‘a shallow ford.’” Paul Muldoon And he immediately set off at a jog-trot down an unapproved road near Aughnacloy or Swanlinbar or Lifford.
V
“It had always been my sense,” I hear him still, “that the goat fades into the goad and the spur fades into the flank and the fastness fades into no ½xed abode
and the Black Pig’s Dyke fades into the piggybank and your Hams fade into your Japheths and the point fades into the point-blank
and the Cristal fades into the crystal meths where the ends somehow begin to fade into the means and the sheugh fades into the shibboleth
and the timbre fades into the tambourine and the quiddity fades into the quid pro quo and–you’ll like this, I know–the bourne fades into the boreen.”
Paul Muldoon, a Fellow of the American Academy since 2000, is the Howard G. B. Clark Professor of the Humanities and Creative Writing at Princeton University. In May of 1999, he was elected Professor of Poetry at Oxford University, the forty-second poet to hold this honorary position. His publications include “Poems 1968–1998” (2001) and, forthcoming in October of 2002, “Moy Sand and Gravel.”
© 2002 by Paul Muldoon
114 Dædalus Spring 2002 Fiction by Frederick Busch
The rescue mission
I worked hard, that year, at jobs that bag in my backpack, along with my repaid me only in wages. I received no sketch book and pencils. I made mis- pleasure from what I did, and no one shapen dogs, deformed beasts of the praised or honored me. But no one barnyard, and creatures inspired by struck me, either, and I was forced to movies about outer-space wars. The wake up in the early afternoon, to shave desk was in the stubby trailer main- and bathe, to put on laundered clothing, tained by the Rescue Mission, and the and to leave the Polk Street apartment trailer was in the giant parking lot of a for what, in Syracuse, New York, could supermarket famous for the quality and be called the world at large. cost of its meat and produce. Very good On the job, I lined my desk with small cars circled the trailer in which I sat to clay ½gures I pinched and prodded from mind the goods left off by high-class a moist, gray ball I carried in a plastic shoppers with a conscience, or those af- flicted with slightly flawed microwave Frederick Busch, Edgar W. B. Fairchild Professor ovens, or good clothing into which they of Literature at Colgate University, is the author could no longer slide with ease. What- of twenty-four books, including novels, volumes of ever they dropped off, whether wear- short fiction and essays, and literary criticism. His able, repairable, or edible and tinned, most recent publications are a collection of stories the Mission accepted. I spent my shift entitled “Don’t Tell Anyone” (2000) and the nov- ½xing what I could, and people who real- els “The Night Inspector” (1999) and “Girls” ly knew household machines worked on (1997). His latest nonfiction work is “A Danger- the rest; the Mission gave the food away ous Profession: A Book About the Writing Life” and sold the appliances in its store (1998). Busch, a Fellow of the American Acade- downtown in the medical district. This my since 2001, is the recipient of many awards was a gloomy neighborhood of low, boxy and honors, among them the National Jewish of½ce buildings and wet, broad streets, Book Award for his novel “Invisible Mending” with a psychiatric hospital, a medical and the PEN/Malamud Award for Excellence in center, and the of½ce of the county med- Short Fiction. He recently received the Award of ical examiner where people went to Merit Medal for the Short Story, given once every identify their dead. The Mission used its six years to an outstanding short story writer by income to buy food for the homeless and the American Academy of Arts and Letters. for families in need. Can you name a family that is not in need? © 2002 by Frederick Busch
Dædalus Spring 2002 115 Fiction by I accepted the generosities of shoppers trace of blondish bright green at the Frederick Busch on their way from work. I wrote out the ends. She stood in the doorway under receipt and handed over the list of sug- her shiny head that was everything gested tax credits they might claim. I Titian knew never to be about, and she smoked a lot of Lucky Strikes and tried looked like a fugitive. Her jeans appeared to convince myself to read about Hans damp, even soggy, and her tan lace-up Hofmann in New York. I had just left boots were dark with moisture. New York, and I kept wishing I was I said, “You intend to donate your hair there. As for Hofmann, I didn’t want to to someone in need?” read about him. I wanted to be him, or She wore a shade of lipstick that repre- any artist that purposeful. So I smoked, I sented an effort to match her hair. It sketched, I made clay ½gures, I fought failed. She was very pale, and the color the tightness in my stomach which of her hair made her skin look muddy. wasn’t hunger (I never ate much during “Do you think I could warm up in here that time in Syracuse) and I tried to con- a few minutes?” she asked me. We had vince myself that I would emerge–from electric baseboard heaters, and I kept the this gray, cold, sorry city in its necklace thermostat high. She clasped her hands of bright suburbs–with a postgraduate in front of her and shivered. Sleet and degree in ½ne arts and a future consist- granules of hail, in epaulets, lay along ing of work I liked among people who the shoulders of her jacket. When I was a thought me excellent. The graduate kid, they were called Eisenhower jackets, courses met mostly in the late afternoon and I recalled them as made of unlined or early evening. I worked my jobs to wool. Bad girls in my high school wore afford the tuition I wasted by coming to their boyfriends’. Now, I supposed, hers work instead of to class. But, then, can was a fashion statement. She didn’t look you name an art student who is not in terribly Commander in Chief to me, so I need? nodded. She nodded back, and she took Early in February, after the January two steps in and squatted near an elec- thaw had hardened into mud-colored tric can opener that made the can-open- ruts of ice, when it was not only cold but ing noises but didn’t take the top off always damp, so your elbows clicked and anything: the can hung in place and your ½ngers worked without precision, shook, not unlike the maroon-haired during what you might think of as the girl. dinner hour, a maroon-haired girl The way she crouched there annoyed climbed the rough wooden steps built me, and I said, “Come here, for Christ’s clumsily from unmilled spruce planks sake.” and opened the door to tell me, “Knock “Where?” knock.” “In this chair.” Now, what I detested most in life could “Are you getting out of it?” be summed up as people who stand in “You do not have to sit on my lap to your doorway and say, “Knock knock.” get warm. Correct.” So I stared, in no friendly way, and said She nodded again, I nodded again, I nothing she could mistake for a wel- shifted from the chair, she passed care- come. fully in front of me, and then she sat Her hair was ear-length and its very down with her arms across her chest bright maroon, at the top of her head, while I took a Philips-head screwdriver seemed to go golden and then into a from the metal shelf near the door and
116 Dædalus Spring 2002 began to work on the can opener, which, hits you.” The rescue so far, was useful only as a paper weight. “What–it shows?” mission She was very small, with short, stubby “Just the little yellow thing along your ½ngers and almost-chubby hands. She jaw. Next color is brown. Then green-y looked, at ½rst, like a child. With that blue. Then your basic black and blue. hair, she could have passed as a child’s The makeup never works. Anyway, doll. But her face was lined as well as you’re too light-skinned to wear enough dirty, I saw, and her eyes were hazel-col- of it to do a very good job. I could try for ored and quite grown up. you. Have you got your stuff?” She coughed and wiped at her nose. “What, are you, like, gay? You do Then she clasped her hands on the desk makeup with your friends?” and seemed to study the animals I’d left “Right,” I said, “I’m gay.” there. “No, you’re not. I could tell.” “You make these?” “Okay,” I said, “I’m not.” I said, “It’s like doodling. It kills the “I know you’re not.” time.” “That’s right.” “Boring, huh?” “So how do you know about putting I said, “It’s a job.” makeup on girls?” “I get jobs,” she said. “My mother was kind of a girl when I “Good.” knew her.” “Then I lose them. I have this way of “What?” messing things up.” Her voice was rich, “She was young, that’s all. What’s and coarsened by cigarettes, I thought. your name?” “We must be from the same family.” I “What would you guess?” she said, looked up, prepared to smile, but she moving the clay ½gures about as if she kept looking at the animals. were a child at play. Her expression “I don’t think so,” she said. wasn’t playful, though, and I wondered “No, it was just a kind of joke.” if when she dreamed or, say, chased a “My boyfriend says I never get the bus on Erie Boulevard, she forgot joke, so the joke’s on me.” She looked at enough of her life to look less wary. the ½gures and said, ½nally, “These are “With hair like that,” I said, “it’s a weird animals. But you being a guy and de½nite Monique. Possibly a Lauren.” all, I’d have expected you to have them “Lauren Hutton,” she said. “With that locked in mortal combat.” gap tooth? My boyfriend’s horny for “Mortal combat,” I said. “No, I hate Lauren Hutton.” that stuff.” I asked her, “Who hits you?” “Is he the guy who hammers you?” “What am I,” she said, “some kind of a “But it’s Jill. Dumb, huh? Who’re waif? And you’re the whatever–the res- you?” cuer guy? The protector? I’m begging “Edward.” you for a little warmth in here is all.” “Ed?” “You’re getting it,” I said. “You got it. “No. Edward. I never got too much Forget I asked.” into Ed, or Eddie, or any of that.” “Yeah. ‘Who hits you?’ And then for- “Yeah, you’re a formal guy. I can tell get it.” She lit one of my cigarettes and that. Edward. Okay.” coughed as the un½ltered smoke hit her “How old are you, Jill?” lungs. “I thought they’d have nuns in here,” “Help yourself,” I said. “And nobody she said. “Parish priests and nuns. You
Dædalus Spring 2002 117 Fiction by know: ‘Rescue Mission’?” which cost me a couple of hours’ wages, Frederick Busch “I think maybe you want a church,” I and then I drove home, about six miles said. “Some kind of sanctuary? You west, then two blocks up, and quite a few want me to help you get to a church? Or socioeconomic notches down, to my the women’s shelter?” apartment. She stood. She very carefully flicked I drank beer and worked some more her ½nger into a cow with four horns and on a sketch I’d started before locking up sent it softly over. “Been to the shelter. the Mission trailer. It was not a cartoon Been back from it. Thanks for the heat, for a grand canvas by Tintoretto, nor was Edward.” it the trail of a masterful hand like Ells- “Good luck,” I said. The can opener worth Kelly’s, but it was not too bad a whirred. I tested it on a donated tin of sketch by someone who worked the late fruit cocktail. “Take care of yourself, shift at the Rescue Mission trailer and Jill.” who could clearly bene½t from the in- She said, “Same to you.” She righted struction he managed to avoid. My boy- the clay mutant cow, put her hands in friend says I never get the joke. And I have her jeans pockets, and left the trailer, this way of always messing up. I heard them passing me as she did with a little light- like lines in a love song on a jukebox in a footed nonchalance neither of us be- bar. Like lines in a love song, when you lieved. think you’re dying from the love, you I had wasted the fruit cocktail because understand them, you believe, because I’d sliced my left thumb on the open can, you’re an expert. You know they mean bleeding a red that clashed with the more to you than to anyone else, and you rusty color of the maraschino cherry. I are so tipped off, and so clued in, that considered drawing with my blood in- you could weep to celebrate your wound stead of ink, but I was simply too old for and your awareness. But all you are, of a stunt like that. I cleaned my mess and course, is high on a very high dose of began a sketch, while holding my left yourself. This was how I sneered at thumb up in the air, like a parody of myself that night, drinking beer, and someone who indicates to you that life is switching from pencil to conte crayon. just dandy. I drew with my right, and I But I did know what she meant, and I got through the rest of the late shift knew what her boyfriend meant. without talking to anyone except a teary, The next day was Friday: me in the tall woman who brought her dead Mission trailer from two in the after- father’s sportcoats and slacks in a couple noon until eight. I woke up early and of plastic bags. You give me the dead drove to the university, where I threw guy’s clothing, I give you a receipt and I clay in the hope of being seen by my either say Thank You or Sorry, depend- sculpture teacher. I didn’t know why I ing on your attitude. Then I go back to made occasional awkward efforts to stay the picture. Then I turn down the heat, a part of the degree program when I at- switch off the lights, lock up the trailer, tended few lectures and came to no cri- and drive my corroded Chevrolet station tiques. I thought I was holding myself in wagon, its paneling held on with duct readiness, I believe. I believe I was telling tape, across the lot to the 24-hour mar- myself about open options, about ket. That night, I strolled among the sol- pouncing on opportunity in case it came vent and well-nourished and bought my- to the door–“Knock knock”–when self a six-pack of Anchor Steam Beer, what I was really doing, I guess, was pan-
118 Dædalus Spring 2002 icking in slow motion. I said, “It’s staying the hell out, right? The rescue Jill came back to the trailer at some- That’s the hard part?” mission thing like ½ve, her khaki Eisenhower She said, “It’s staying in that’s hard. jacket open, her white T-shirt stained, No. I don’t know. Who says any of it’s her eyes enormous and miserable, her easy?” Her eyes were red, and the tears pale skin chapped-looking, mottled. I stained her face as if they were mascara was accepting, from a man who kept a tracks. They weren’t, but they dropped, little white dog on a long lead, a portable very visibly, straight down to the corners television set he had taken away from his of her narrow mouth. son whose grades had slumped. “Heavy tears,” I said. I got to her slow- “Knock knock,” she said from the ly and was raising my right fore½nger doorway. with care to touch a tear. She flinched “Damn it,” I said. “Why don’t you just anyway, and I put my hand at my side. knock on the goddamned door? Instead “Sorry,” she said. of saying it?” The man pursed his lips “You didn’t do anything. You don’t and raised his eyebrows, and I asked have to let people touch your tears. him, “What? You want to donate the Where did he hurt you this time?” dog?” She pulled up the sleeve of her jacket, Jill said to him, “Edward always cracks and I saw the two red patches on her up- jokes.” Her face was a mask of amiabili- per forearm. “Indian burn,” I said. “He ty: she wanted so much to appear to be put both his hands there and he twisted my friend, to be able to know and ex- one of them up and one of them down. plain me to small men in charge of small Right?” dogs who could never know me as well “Native American burn,” she said, as she. I thought I could smell her across laughing while she cried. It sounded like the trailer and over the ripeness of slow- a cough. leaking canine gas. She bore a vegetable “Is he Indian?” smell, dark as old carrots and onions, a “Native American,” she said. “Part funk of fear and, I ½gured, of pain. It was Onondaga, some French-Canadian, the smell of the end of the long flight. some I don’t know. He’s beautiful, The man smiled at neither of us, indi- though. He’s got this, like, copper-col- cated with his head that his dog should ored skin, almost. It’s beautiful.” follow; he left and the dog went, the lead “That’s what you said when you told looped between them on the floor like a your parents about him before you left.” signature on a contract. “My mother,” she said. “I stopped “Smart dog,” I told her. “How’s life?” talking to my father.” “I’m in a little bit of shit,” she said, “Did your father hit you?” looking away from me. “That tv “Sure,” she said. “What else?” work?” “Exactly,” I said. “What else. Exactly. “The guy said it does, yeah. You want Well, they do rape you, sometimes, it?” fathers.” “I don’t think I have a plug, anymore, “You know about this shit.” to plug it into.” “Would you like a hot shower and a “He threw you out.” meal?” “No,” she said proudly, looking young She held her breath, then let it out. while she tried on old expressions, “I got “Nobody ever tried to fuck me with a the hell out on my own.” lead-in like that.” She almost keened the
Dædalus Spring 2002 119 Fiction by words, and each syllable was pitched on deep end of the deep shit, like me.” Frederick Busch the same sharp note. “I got on-the-job training,” I said. “I “‘Lead-in’? You’re a singer?” may be stranded here, but I’m a total “I used to think about music college. I authority on being you.” used to think about singing and music She sat very still. I thought she was college up in Potsdam. You’re not trying going to erupt and leave. But her face to fuck me because who’d want this?” went placid, almost as if she had fallen She held her hands out, indicating the asleep, or as if she were a child who lis- best evidence–herself–of her unwor- tened to a story. Once upon a time, there thiness. was you. . . . “Name your favorite food,” I said, I said, “My mother got herself backing away and indicating the desk, knocked around a lot. Kicked. Punched. where she might sit and warm herself. Cut. Slashed. Broken. Fucker broke her She went there, and she sat. I had arm two times. Broke her jaw. Broke her shaped, in clay, a large mouth, belonging nose. She stopped looking like her.” to no creature I knew about, from which “Did she make it?” protruded, instead of a tongue, another “So you do know the chances are good bestial mouth. She held it, then put it that you’ll die of it,” I said. down, and wiped her hands on her “The lady at the shelter told me. First sleeves. “You’re crazy,” she said. Then: thing. ‘Know that they tend to kill you,’ “Oatmeal.” she said, like she was telling me the “That’s it? Oatmeal?” weather. I knew it was a set-up deal. But “Yeah.” She nodded. “Yeah, that still. You know: dying. I heard around. would be my favorite. With brown You hear things at work. I work in bars, sugar.” restaurants. Ruby Tuesday’s. Bennigan’s. “I’ll make oatmeal for you.” Colorado Mining Company. Theme “You can cook?” parks with food. You know. Where you “I can cook that much,” I said. can just get by without a master’s de- “Is that what you do? Like, I’m a wait- gree. You hear it, though. Like it really ress and a punching bag, you’re a rescuer happens. But the way she said it, at the and a cook?” shelter–like it was a pitch for some- “No,” I said, “but I used to run deliver- thing.” ies for a fancy food place in New York. “That’s what it was,” I said. “She was So I had a small connection to food.” trying to sell you some staying alive.” “New York’s cool. Why aren’t you “But did your mother make it?” there?” I shook my head. “She only got “Had to come up here.” involved with men who hurt her. So I “For what? Come on. Come on. had to come up here for her.” What?” Her face was furrowed with im- “Because she died?” patience, and she looked, then, almost “I had to identify her body.” my own age, middle twenties, instead of “Jesus.” like a full-time high-school cutter of “At the county medical examiner’s classes. building.” “You want anybody else’s story, right? “They just go, like, here? And you go, Anything except yours.” that’s right, it’s my mother, thanks a lot “You’re in trouble, right?” She said, for inviting me over this afternoon? “You’re in hiding up here. You’re in the What’d she look like? Jesus, Edward.
120 Dædalus Spring 2002 How did you feel?” “Well, then, that’s a weapon he The rescue “I had to walk into this living room wouldn’t have access to.” mission setup they have. A room off the lobby of “Right.” the building, you walk in, and there’s a “Jill,” I said, “I wish you could hear rug and a coffee table, I think, and a sofa. us.” I do remember that. And some chairs, “I do, Edward, I hear us. You think I’m and a set of dark drapes. Who installs the stupid?” drapes? Who picks out the furniture? I “No.” kept wondering if they knew why. I re- “Nice?” member the chairs are this terrible blue, “Yes.” this optimistic, cheerful, cerulean blue. “Cute?” It’s like a tv show, except Dad’s not “Sure. Cute.” reading the paper and Mom’s not fold- “You think I’m a furball.” ing laundry and being cute about life. “I’m offering hot oatmeal, a shower, They ask you if you’re ready, and then clean clothes, twenty-four safe hours, no the guy pulls the drapes. They’re blue, conversations you don’t want to have, too, except very dark, and very shiny. It and no extracurricular activities. All of it looks metallic, the cloth, the drapery almost around the corner from you. In looks like it weighs a couple of hundred the navel of bleakness.” pounds. And I guess I felt the way I’d feel “It’s pretty in the spring.” if it was you. An off-yellow sheet around “In the spring, if spring ever comes, it your body and your face uncovered.” could be pretty. And I’ll throw in a guar- “And it would be me,” she said. antee: no more descriptions of my “There you’d be,” I said. “Dying’s a mother.” cliché,” I said, “because she honestly “Who got beat to death.” looked like she was sleeping. Everybody “Who–yes. That’s right.” says that, I hear. Well. It’s true, though. “Who got domestic abused to death.” Well. Except her jaw was thick where it “Yes.” used to be ½ne, and her nose was knobby “If I took a shower and washed my where it used to be thin. And her fore- hair, I’d be cute.” head was all yellow and brown where he “Jill, I don’t care if you’re cute.” broke it. I could see the caved-in part. “You should. Edward, are you sure you The medical examiner said he tried to ½x aren’t gay? Makeup on your mother. it a little before I looked, but he could Clay stuff. Drawings. That’s pretty gay not. How could he ½x it? Her boyfriend stuff.” broke it with a steam iron. You don’t ½x “Okay,” I said, “½ne, I’m gay.” it when they come to bat with the big- “You really did her makeup?” league swing. But maybe you and your “We were both young. It was how we boyfriend don’t have a steam iron in the talked about it without talking about it.” house.” “Your old man?” “House,” she said. “It’s one of those I nodded. apartments on Kinney.” “He beat on you.” “We’re neighbors,” I said. “I’m on I nodded. Polk Street.” “But she didn’t put makeup on you?” “I take the laundry when we have I shook my head. enough money, you know, out to the “So that’s how you got not to be gay.” cleaners. They iron it.” “That’s how I got not to be gay. We
Dædalus Spring 2002 121 Fiction by need to shop some oats later on,” I said. with ½lthy, coarse snow in roadside Frederick Busch She fell asleep sitting at the desk while mounds, started to look clean. Jill was I rewired a lamp that was made from a sleeping when I returned to the car, and ceramic batter jug. At eight o’clock, I she slept as I drove us on Erie Boulevard, woke her and turned the heat down and past the kind of joint she waitressed in, the lights off and locked the trailer. We and cut-rate furniture stores, and burger drove over to the market, and she was franchises, and then up, past the sex club asleep before I’d ½nished locking her in which that night was featuring a naked the car. I thought it was at best a halfway dancer named Cricket. probability that she would be there “Home,” I told Jill. when I returned with oats, brown sugar, She woke up with huge eyes, fluttering butter, raisins, and Anchor Steam Beer. lids, she made a sound like a sick sigh. I Inside the market, I saw three men with knew she didn’t remember where she interesting skin, one of them a little was. I knew it all, didn’t I? scarred at the forehead and chin whose “Edward’s place,” I told her. flesh looked almost golden. He had big “Oatmeal.” hands on long arms, and his hair was “With brown sugar,” she said. “Right. glossy black, gathered in a ponytail, and Okay. The Rescue Mission Man.” he looked dangerous. Of course, you You walked down a narrow flight of look hard enough for dangerous people, stairs from the entrance on the side of you’re going to ½nd them in abundance. the three-story building–my apartment The golden man’s scars were yellow- in the basement, one larger apartment white, and it was dif½cult to look away on each floor–and you entered my little from them because you don’t always see living room, which led into the kitch- that clearly what people like us might be enette straight ahead or, to the left, my passing. But there they were: the gifts bedroom and bath. None of it was ½lthy, from parents or other elders which we but little of it was worth looking at ex- handed on to girlfriends or wives or kids. cept the walls and refrigerator, on which I wondered, of course, if I would do the I had taped reproductions of pictures, same, as a father, as a lover, as a man postcards from museums, some of my who didn’t live alone. That was a reason own sketches, and a letter from my I lived alone, I think–to keep the gifts to mother’s ½nal boyfriend’s lawyer. myself. I said, “Familiar, huh?” I was staring, and the golden-skinned “Nice pictures,” she said. “I’ll bet you man looked at me. I was disgusted by one of these days we’ll live better.” how I flinched and turned to study a bot- “Really?” tle of fermented soy, holding my breath “Sure,” she said. “Why not? Hey! This –truly: not breathing in or out, as if I is me!” She was looking at my sketch of cowered in the brush of a dark forest– her, taped onto the wall near my calen- until he was past. dar. The air, which had been damp as well “It’s supposed to be, anyway,” I said. as cold when I went into the market, was “No, it is. It’s good. Except I look almost liquid now, and the temperature weird. Am I supposed to look, I don’t was falling. Fog was beginning to freeze know, sick?” on windshields and light stanchions and I was putting a saucepan of water on to trees. The night was turning white. The boil. “No, you’re not.” city, black and brown with slush and “Well, I look it.”
122 Dædalus Spring 2002 “You’re supposed to be sleeping,” I think of her in my bathroom, rubbing The rescue said. my stuff on her face. At that time, I mission “You saw me sleeping?” didn’t want to receive anything from “Tonight, but not when I made the pic- anyone nor, I suppose, to give much, ture.” either. “You imagined me,” she said. I put the oatmeal in front of her. She “I did.” watched me pour milk and sprinkle the “That’s pretty intimate, imagining sugar on, then stir it again until the rai- someone asleep.” sins were coated. “I didn’t mean it to be.” “This is what you eat when you’re a She said, “Oh, no?” I shook my head. kid,” she said, blowing on a spoonful. “Well, as long as I’m not a weirdo made “And you’re a kid,” I said. I went to the of clay, or dead or anything,” she said. other side of the table with a bottle of “Clean shirts, undershirts, boxers if beer and my cigarettes. you want: in the bureau in there. Long “I haven’t been a kid for years,” she shower now, and I’ll make oatmeal.” I said. She ate and stopped, closed her said it with the modesty you use before eyes, swallowed. When she opened stepping into the operating theater for a them, they were wet. little neurosurgery, but it was mostly “Hot,” I said. reading directions on the can, stirring “Hot.” the oats into the boiling water, and being “Your mother made it for you?” alone for a few minutes to think about “No,” she said, “my mother never the heavy, tearing noise the drapes made made it for me. I don’t think I ever ate it when they scraped open and harsh white before in my life. No, I had this girlfriend light fell on her gray and yellow skin, her in school–well, she wasn’t my friend. broken head. We went on a date together with these Jill called out, “I was thinking you’d be guys who were friends, one of them had a jockey shorts guy. Whoops. I don’t a car, and we both kind of gave it up at mean I was, you know, going around the same time, her in the front seat and thinking about your underwear.” me in the back. So we had to act like I actually said to the man who pulled friends so we wouldn’t think each other the drapes, “She looks like she’s asleep.” was a slut. That would be my analysis, He didn’t say anything. Then he looking back at it. But we both acted opened his mouth. I heard his lips pull pretty much like sluts, no way around stickily apart and I heard him say, “I that. And this girl, her mother always wish she was, buddy.” made her oatmeal for breakfast, she said. That was when I cried. When he tried, I was so jealous. Imagine your mother that way, to be kind to me. cooking breakfast for you. Jesus.” Her I sat at the table and smoked cigarettes face was smooth, that instant, and then until Jill came, wearing the same cloth- it clenched again. She said, “You’re real- ing she’d worn into the bathroom. She’d ly a trip, Edward, you know? And I–” made a decision, and I was relieved that She went so pale that I stood, a ciga- she wasn’t small and cuddly in my big rette in my mouth, the bottle of Anchor bathrobe, or available in my boxer Steam still in my hand. “What?” shorts. She smelled of deodorant soap She raised a ½nger to her lips. She and, I’d have sworn, my shaving cream. I swallowed. She shook her head. “The disapproved of the pleasure it gave me to door?” she whispered.
Dædalus Spring 2002 123 Fiction by “No.” was the door, maybe it wasn’t him.” Frederick Busch “Yes.” She covered her mouth with her “So open it,” she said, staring at the hand, and it was as if each belonged to oatmeal. “Just open it and let him in. I separate people. Her eyes blinked and mean: why not?” I moved from the table blinked, and I thought she was going to and she said, “No! Edward!” faint. I ½gured that the golden-skinned “Open it like ‘I dare you to open the man with the scars had followed us from door’? Open the door, Jill?” the market. I realized that was who was “No,” she said. “Please. Edward, at the door. He was going to smile when please.” I opened the door, and show his healthy “Because I will open the fucking door,” teeth, and say, “Knock knock.” But of I said. I went around the table and across course it was my father who had come to to the door and I set my hand on the the door like that, before he shook his latch. head and gritted his teeth and shook his “Edward, why are you angry? Don’t be head faster and faster and made the long, mad at me. Please don’t open the door, wordless sound, like a circular saw biting Edward. Please don’t be mad.” wood, and began with his ½sts. It stopped me. I took my hand away It wasn’t my father at the door, I from the latch. I said, “I’m not mad at remembered. It was the man from the you.” market. And I didn’t have to let him in. “You looked very angry, Edward.” I didn’t have to let him in. “No,” I said, thinking of all of us who “Maybe he isn’t mad,” Jill whispered. passed our gifts along. “I’m not angry, “Maybe,” I whispered back. Jill. It’s ½ne, it’s all right, and nobody’s “He’s gentle, you know, sometimes.” here. But I won’t open the door. You’re “I know.” safe. You can stay here, if you need to, “You do?” and we can both be safe.” I sickened myself. I hated myself. I I listened to us, breathing hard. said, “Yes, I do. It’s the same damned But I had taken away the safety, and thing again, Jill. So I know it. But I don’t she said, with her own anger, “And you think I heard anything. Maybe you really can put my makeup on for me. And cook didn’t hear him? You think?” me oatmeal.” She closed her eyes and stirred the oat- “I wasn’t mad at you,” I said. “I was meal. Then, her eyes still closed, she set mad at myself.” the spoon against the side of the bowl. “And make me little clay cow things She lowered her face almost into the oat- and mouth things. But you were mad at meal and ½nally she looked at me. I drew me, Edward. It’s not like you’re not a in most of the cigarette and dropped the good guy. You never put a move on me, butt into the beer bottle. I sat down. I lit and I’m walking around here taking off another one. clothes and putting them on, naked in I said, “It could be habit. It–because the shower and defenseless and every- you aren’t used to being alone that thing. And the oatmeal and all.” much. Because he needs you with him all “Which you didn’t eat.” the time, doesn’t he?” “I think I wanted somebody to make it “He needs me all the time, that’s for me more than I wanted to eat it. If right.” that doesn’t upset you.” “And maybe you only thought you “No way you can upset me. Would you heard the door. And, anyway, even if it like a cigarette? A beer? Glass of milk?”
124 Dædalus Spring 2002 “No, thank you,” she said. school. Every now and again, I drove, The rescue “I have bread, I could make you toast.” though not too slowly, down Kinney mission She shook her head. “I think I better Street. For a while, I bought the Post- go back, because what if it was him?” Standard and looked for news of small, “You can stay here,” I said. “Or you beaten women. There were several, of could come back. You could always come course, but none that sounded like Jill. I back, if you needed to.” She stood in was watchful, always, for a golden- front of me, several steps away, and skinned man with scars, but I never saw looked up out of her light eyes surround- him. And, though I thought I had come ed by furrow, all of it under that hideous, to a kind of an ending, I surprised myself metallic maroon. I didn’t feel any emo- by living through the season in that city, tion, I thought. “So you could let me and then through the year, and then the know,” I said. others. I always hoped to see her, but I “Let you know what? I don’t know any- also always thought–and I think Jill thing you don’t.” always knew–that it would ½nish for her “Please let me know you’re okay.” at the window where, when the drapes I didn’t think she could trust me again, drag apart, one of you will look inside, but I waited to hear–at the apartment, and one of you will look like she’s asleep. and at the Rescue Mission trailer, and at
Dædalus Spring 2002 125 over a century ago, in 1893. A new trans- lation that I have been preparing, with my colleague Sudhir Kakar, for Oxford World Classics, reveals for the ½rst time the text’s surprisingly modern ideas Wendy Doniger about gender and unexpectedly subtle stereotypes of feminine and masculine on the natures. It also reveals relatively liberal Kamasutra attitudes to women’s education and sex- ual freedom, and far more complex views on homosexual acts than are sug- gested by other texts of this period. And it makes us see just what Burton got wrong, and ask why he got it wrong. Most Americans and Europeans today think that the Kamasutra is just about sexual positions. Reviews of books deal- ing with the Kamasutra in recent years The Kamasutra, which many people re- have had titles like “Assume the Posi- gard as the paradigmatic textbook for tion” and “Position Impossible.” In In- sex, was composed in North India, prob- dia, Kamasutra is the name of a condom; ably in the third century c.e., in San- in America, one website offered The Ka- skrit, the literary language of ancient masutra of Pooh, posing stuffed animals India. There is nothing remotely like it in compromising positions (Piglet on even now, and for its time it was aston- Pooh, Pooh mounting Eeyore, and so ishingly sophisticated; it was already forth). The part of the Kamasutra de- well known in India at a time when the scribing the positions may have been the Europeans were still swinging in trees, best-thumbed passage in previous ages culturally (and sexually) speaking. of sexual censorship, but nowadays, The Kamasutra is known in English when sexually explicit novels, ½lms, and almost entirely through the translation instruction manuals are available every- by Sir Richard Francis Burton, published where, that part is the least useful. The real Kamasutra, however, is not the sort of book to be read in bed when Wendy Doniger is Mircea Eliade Distinguished drinking heavily, let alone held in one Service Professor of the History of Religions at the hand in order to keep the other hand Divinity School of the University of Chicago. Her free. The product of a culture quite re- research and teaching interests revolve around two mote from our own, it is in fact a book basic areas, Hinduism and mythology. The author about the art of living: about ½nding a of numerous books, including most recently “The partner, maintaining power in a mar- Bedtrick: Tales of Sex and Masquerade,” she is riage, committing adultery, living as or currently working on a translation of the last four with a courtesan, using drugs–and also books of the “Mahabharata”; a novel, “Horses about the positions in sexual inter- for Lovers, Dogs for Husbands”; and a book course. In the Burton translation, read about in½nite regress and self-imitation in mythol- now in the shadow of Edward Said, it ogy. Doniger has been a Fellow of the American seems to be about Orientalism. Read in Academy since 1989. the wake of Michel Foucault, it seems to
126 Dædalus Spring 2002 be about power, and in the wake of Ju- der. Vatsyayana acknowledges that peo- The dith Butler, about the control of women ple do, sometimes, reverse gender roles: Kamasutra and the denial of homosexuals. I do not “Their passion and a particular tech- think these are its primary concerns, but nique may sometimes lead them even to it certainly is about gender, and to that exchange roles; but not for very long. In extent Said, Foucault, and Butler are es- the end, the natural roles are reestab- sential companions for us as we read it lished” [2.7.23]. This switch of “natural today. talents” is precisely what happens when We can learn a lot about conventional the woman is on top [2.8.6], a position Indian ideas of gender from the Kamasu- that most Sanskrit texts refer to as the tra. The author, Vatsyayana, describes “perverse” or “reversed” or “topsy-tur- typically female behavior: “dress, chat- vy” position (viparitam). Vatsyayana ter, grace, emotions, delicacy, timidity, never uses this term, referring to the innocence, frailty, and bashfulness.” The woman-on-top position only with the closest he has to a word for our “gender” verb “to play the man’s role” (purushayit- is “natural talent” or “glory” (tejas) [at va). Even while she is playing that role, 2.7.22]: “A man’s natural talent is his however, she mimes her own conven- roughness and ferocity; a woman’s is her tional gender behavior [2.8.6]: “And, at lack of power and her suffering, self- the same time, she indicates that she is denial, and weakness.” embarrassed and exhausted and wishes What happens when people deviate to stop.” from these norms? The Kamasutra de- A thirteenth-century commentary (by parts from conventional contemporary Yashodhara) spells out the gender com- Hindu views in signi½cant ways. plications: “She now does these acts First, it has what appears to be a third against the current of her own natural gender: “There are two sorts of third na- talent, demonstrating her ferocity. And ture, in the form of a woman and in the so, in order to express the woman’s nat- form of a man. The one in the form of a ural talent, even though she is not em- woman imitates a woman’s dress, chat- barrassed, nor exhausted, and does not ter, grace, emotions, delicacy, timidity, wish to stop, she indicates that she is innocence, frailty, and bashfulness. The embarrassed and exhausted and wishes one in the form of a man, however, con- to stop.” Now, since Vatsyayana insists ceals her desire when she wants a man [at 2.8. 39] that the woman “unveils her and makes her living as a masseur” own feelings completely/when her pas- [2.9.1–6]. Though the Kamasutra quickly sion drives her to get on top,” the feel- dismisses the cross-dressing male, with ings of the woman when she plays the his stereotypical female gender behavior, man’s role seem to be both male and it discusses the fellatio technique of the female. Or, rather, when she acts like a closeted man of the third nature in con- man, she pretends to be a man and then siderable sensual detail, in the longest pretends to be a woman. consecutive passage in the text describ- In this way, Vatsyayana acknowledges ing a physical act, and with what might a woman’s active agency and challenges even be called gusto [2.9.6–24]. her stereotyped gender role. He is also a In addition, the book’s long passage strong advocate for women’s sexual about the woman playing the role of a pleasure and for the importance of man while making love on top of a man ensuring that she has her orgasm before blurs conventional Indian ideas of gen- he has his [2.1.10–23–6, 30]. He even
Dædalus Spring 2002 127 Note by knew about the G-spot: “When he is His translation remains precious, like Wendy moving inside her, and her eyes roll Edward Fitzgerald’s Rubaiyat, as a monu- Doniger when she feels him in certain spots, he ment of English literature, though not presses her in just those spots” [2.8.16]. much closer to Vatsyayana than Fitzger- The commentator clari½es the passage: ald was to Omar Khayyam. For the San- “When she feels him moving in a certain skrit text simply does not say what Bur- spot inside her, the pleasure of that ton says it says. touch makes her eyes whirl around in a In general, Burton gets the gender circle. . . . There is some argument about wrong. For instance, at 4.1.19–21 Sudhir this. Some people say that, when the Kakar and I have translated the text like man is stroking inside her, whatever this: place the woman looks at, either speci½- Mildly offended by the man’s in½delities, cally or vaguely, that is the place where she does not accuse him too much, but she he should press her.” scolds him with abusive language when he In his translation of this passage, Sir is alone or among friends. She does not, Richard Burton makes a basic mistake however, use love-sorcery worked with that plagues his entire translation: when roots, for, Gonardiya says, “Nothing de- the text puzzles him, as it often puzzles stroys trust like that.” all who read it in Sanskrit, he translates the thirteenth-century commentary and The Burton translation here reads: presents it as the text. In this passage, he In the event of any misconduct on the part also gets the commentary wrong: of her husband, she should not blame him “While a man is doing to the woman excessively, though she be a little dis- what he likes best during congress, he pleased. She should not use abusive lan- should always make a point of pressing guage towards him, but rebuke him with those parts of her body on which she conciliatory words, whether he be in the turns her eyes.” There is nothing about company of friends or alone. Moreover, what “he” likes either in the text or in she should not be a scold, for, says Gonar- the commentary; this is Burton’s fanta- diya, “there is no cause of dislike on the sy. part of a husband so great as this charac- In fact, Burton’s translation distorts teristic in a wife.” gender issues throughout. His main con- tribution was the courage and determi- Notice how Burton has watered down nation to publish the work at all; he was the passage, padded it, and made it al- the Larry Flynt of his day. To get around most twice as long as our more direct the censorship laws, Burton set up an translation. He mistranslates the word imaginary publishing house, The Kama for “love-sorcery worked with roots” Shastra Society of London and Benares, (mulakarika), which he renders as “she with printers said to be in Benares or should not be a scold.” His use of the Cosmopoli. Even though it was not for- English word “misconduct” is not so mally published in England and the much a mistranslation as a serious error United States until 1962, the Burton of judgment, for the word in question Kamasutra soon became one of the most (apacara) does have the general meaning pirated books in the English language, of “misconduct,” but in an erotic con- constantly reprinted, often with a new text it usually takes on the more speci½c preface to justify the new edition, some- meaning of “in½delity,” a choice that is times without any attribution to Burton. supported both by the remedy that the
128 Dædalus Spring 2002 text suggests (and rejects)–love-magic lish equivalent anthropologized sex, dis- The –and by the commentator’s gloss (apa- tanced it, made it safe for English read- Kamasutra radha). But the most serious problem ers by assuring them, or pretending to with Burton’s translation is his use of assure them, that the text was not about the word “not,” which negates the wife’s real sexual organs, their sexual organs, right to use abusive language against her but merely about the appendages of straying husband, a denial only some- strange, dark people, far away, who have what quali½ed by the added phrase, lingams and yonis instead of the naughty “rebuke him with conciliatory words.” bits that we have. This move dodged (Was this an innocent error or does it “the smell of obscenity” through the reflect a sexist bias? We cannot know.) same logic that allowed National Geo- Most unfortunately, Burton adroitly graphic to depict the bare breasts of black managed to escape the smell of obsceni- African women long before it became re- ty by using the Hindu terms for the sexu- spectable to show white women’s al organs, yoni and lingam, throughout. breasts in Playboy. It enabled the authors This decision was problematic in several to pretend that the book was not ob- ways. First of all, these terms do not rep- scene because it was about India, when resent Vatsyayana’s text, which only they really thought it was about sex, and rarely uses the word lingam, and never knew that English readers would think yoni. Instead, Vatsyayana uses several so too. different words, primarily gender-neu- In fact, the Burton translation is most tral terms (jaghana) that can be translat- accurate in the sections that deal with ed as “pelvis,” or “genitals,” or “be- the sexual positions, the topic for which tween the legs,” or other terms (such the book became famous. Was this be- as yantra or sadhana, “the instrument”) cause this was what Burton cared about that are neither obscene nor anatomical- most, or worked on most carefully? Or ly precise. In some places, he circum- was it because sex is easier to under- vents, by indirection or implication, the stand, being universal, than the cultural need to employ any speci½c word at all. information that is speci½c to India? Where Vatsyayana does use lingam [at Whatever the answer, the Kamasutra 2.1.1], the context suggests, and the com- deserves its classic status, not just be- mentator af½rms, that it is [like jaghana] cause it is about essential, unchangeable gender-neutral, meant to apply to both human attributes–lust, love, shyness, men and women. rejection, seduction, manipulation–but More signi½cantly, Burton’s decision also because we learn from it deeply inti- to use yoni and lingam had Orientalist im- mate things about a culture that could plications for most English readers. The well be described as long ago and in a use of a Sanskrit term in place of an Eng- galaxy far away.
Dædalus Spring 2002 129 the loyalty oath. Some faculty openly condemned McCarthyism, but there was no student opposition. A few graduate students formed the ½rst aclu student chapter. I was the ½rst president. Leo Breiman It was, for years, the most active non- social student organization on campus. on McCarthyism We worked for repeal of the loyalty oath at Berkeley: the legislation and were tireless and highly enemy is us visible advocates of free speech on cam- pus (in those days, no political activity was allowed on campus). Free speech, to us, meant free speech for all–liberals and conservatives, Nazis and Commu- nists, no matter how odious their beliefs. To me, it still does. There was a personal cost to my belief. In 1954, I became a Ph.D. in mathematics As a longtime statistician, I’m concerned and a buck private in the Army. McCar- about the persistent gap between black thy accused the Army of promoting and white sat scores even after correct- “subversives and fellow travelers.” ing for income and the socioeconomic Cowed, the Army had promised to weed status of parents. Recently I asked a fel- out new inductees suspected of previous low faculty member, a developmental disloyal activities. Army investigators psychologist, why there weren’t more found out about my aclu involvement. I early childhood studies on the subject. spent almost two years under harsh re- His answer was chilling. “There are strictions and harassment awaiting a some things we don’t talk about or do court-martial to decide whether I should research on.” These words brought back be given an undesirable or dishonorable memories. discharge. In the end, the embarrassed In 1950, when I arrived on the Berkeley court-martial of½cers granted me an campus as a graduate student in mathe- honorable discharge, but I still have matics, Joe McCarthy had America in his nightmares about that period. grip. The University was convulsed by The McCarthy era began a few years after the end of World War II when we realized that the Soviet Union was a dan- Leo Breiman, professor emeritus of statistics at the gerous enemy committed to the global University of California, Berkeley, has been a spread of its totalitarian system. McCar- Fellow of the American Academy since 1999 and thy gathered power by constructing an is a member of the National Academy of Sciences. enemy within. His charge, endlessly re- He was president of the Santa Monica School peated, was that our society was ½lled Board and active in the education of Mexican with spies and subversives working to children from small agrarian villages. His current overthrow the American system. research interests are in computationally intensive Starting with legitimate enemies– nonlinear methods for pattern recognition and “Communist Spies”–he expanded the prediction in high-dimensional data spaces. enemy to “Subversives,” then to “Fellow Travelers and Pinkos,” and then to all
130 Dædalus Spring 2002 those who disagreed with him. The ballot was never issued. McCarthyism armed forces issued antisubversive regu- In the same period, a respected survey at Berkeley lations; universities instituted loyalty organization conducted a survey of the oaths; the entertainment industry black- uc faculty on af½rmative action with listed writers, actors, and directors. His anonymity guaranteed. Over 50 percent of power over these institutions would not the respondents said they were against have been possible without the fear he af½rmative action. Inferring from the had built of the vast and vaguely de½ned study, over seven hundred of the Berke- enemy within. ley faculty oppose af½rmative action. Yet Regretfully, I have come to acknowl- only a handful of the faculty have made edge that there is more repression of free public statements to that effect. speech and free research on my campus Currently, there is silence and self-cen- now than in the McCarthy era. There are sorship among many faculty members subjects of vital importance to our socie- who do not hold the “correct” views. If ty that are taboo both for speech and re- one wishes to speak one’s mind about search unless the “correct” position is certain topics, one risks being branded a taken. Examples are af½rmative action, “racist.” I am not saying that faculty are diversity, racial differences, the effects of cowering in their basements; only that cultural differences, and the poor per- they have tacitly agreed not to get “in- formance of black students. volved,” to avoid publicly speaking and It is not the beliefs behind the taboos writing about certain subjects. that surround these topics that trouble The group of students and faculty re- me. There are things to be said both for sponsible for this atmosphere of fear and against af½rmative action. What have a set of core beliefs that are not most concerns me is the chill that has arguable. Their picture of reality is the been placed on rational debate, scholarly unending, unremitting persecution and discourse, and research. repression of blacks, women, Hispanics, For example, many of my Berkeley col- and homosexuals by white heterosexual leagues favor admissions based on aca- males. They have constructed their ene- demic merit and not on af½rmative ac- my well. tion. But they have been cowed into Consider racism. Webster de½nes ra- keeping silent. When the regents voted cism as “the belief that race is the pri- to discontinue the consideration of race mary determinant of human traits and in admissions, protests arose in all of the capacities and that racial differences University of California campuses, and produce an inherent superiority of a par- their academic senates voted almost ticular race.” unanimously to condemn the regents’ Starting with unquestioned racists like action. Bull Conner and George Wallace, “ra- At a meeting of the Berkeley academic cist” has been expanded to include, for senate that I attended, a second and even instance, those doubting the value of af- stronger condemnation of the regents ½rmative action; those who think that was favorably received by the hundred diversity in faculty should not come at or so faculty members in attendance. I the cost of academic excellence; those requested a mail ballot so that the four- who think that reparations are unwar- teen hundred faculty members not pres- ranted; and those who dispute the idea ent could vote. The request could hardly that blacks still suffer unending, un- be refused. It was accepted, but the mail remitting repression.
Dædalus Spring 2002 131 Note by An even more expansive de½nition of walked the streets knowing that I was Leo Breiman the enemy is given by the psychoanalytic surrounded by hostile enemies. But it approach: although it may be buried would be farfetched for me to believe deep in the unconscious, every white that America today is ½lled with ram- heterosexual male is racist, sexist, and pant anti-Semitism. American society homophobic. Denial is impossible, since has changed, and so have my percep- we are not aware of the contents of our tions. unconscious. The perplexing nature of But the true believers in an unremit- this de½nition is that it removes the be- ting “racism” seem to have a vested in- havior of individuals from the arena–no terest in denying that any changes are matter how decently they act, they are occurring. They either dispute or dis- still the enemy. count the statistical evidence of progress Ironically, the statistical signs are that that I’ve briefly summarized. Their pre- economic disparities between blacks and ferred picture is of a static system of bat- whites are in fact rapidly decreasing– tle lines on which the all-powerful and one welcome result of the Civil Rights pervasive enemy continues its relentless movement. For instance, in 1999 the me- oppression. It is this picture that justi½es dian two-parent black family income the repression of free speech and re- ($47,382) was not far below that of two- search on campus. parent white families ($54,845). The beginning of the end of the Mc- From 1970 to 1999, the percent of black Carthy era was marked by a moment on families earning more than $50,000 a nationally televised hearings in 1954 year (in 1998 dollars) went from 15.2 per- when Joseph Welch, a short dapper law- cent to 28.4 percent. Census data gives yer from New England with impeccable the percent of blacks employed in vari- patriotic credentials, looked at McCar- ous occupations in 1983 and 1999. In thy and said, “Until this moment, Sena- high-status occupations such as manage- tor, I think I never really gauged your ment, engineering, mathematical and cruelty or your recklessness. Let us not computer sciences, chemistry, medicine, assassinate this lad further, Senator. You and the law, increases over this sixteen- have done enough. Have you no sense of year period were dramatic, with an aver- decency, sir, at long last? Have you no age increase of 60 percent. sense of decency?” These words are When a black woman who is the presi- indelible in my memory. dent of an elite women’s college was It’s hard to see any light at the end of asked on a recent television talk show the present tunnel. The repression of whether discrimination still exists, she free speech and writing continues un- replied, “of course–we get passed up by abated with almost no dissent. The Mc- taxis and get suspicious looks from store Carthyite repression was fanned by a rel- clerks.” If the worst of discrimination is atively small number of demagogues. down to being refused rides by a few The present repression has its source in taxis, we have come a long way. the guilt, anger, and self-righteousness My mother and father saw anti-Semi- of many faceless individuals, and the tism everywhere–for poor immigrants self-censorship of the others. Coura- from Ukraine in the early 1900s, this per- geous individuals stood up to McCarthy ception was realistic. As a Jewish boy and brought about his downfall. But I growing up in an Irish-Polish working- don’t see many Joseph Welches on the class neighborhood, I was repeatedly Berkeley campus. beaten up for being a “Christ killer.” I 132 Dædalus Spring 2002 selectively discerned in the history of Western societies onto the future of the societies of the less “developed” world. But what Darwin had shown was that long-term qualitative change can and W. G. Runciman should be explained without the as- sumption of any predetermined goal, on Darwin & sequence, or outcome, all the way from sociological the chemical evolution that preceded theory today biological evolution through the evolu- tion of human cultures and societies to the evolution of machines with some, at least, of the properties of the human mind. That is why the philosopher Daniel C. Dennett, in his 1995 book Darwin’s Dan- gerous Idea, credits Darwin with “the best single idea anyone has ever had.” But the Sociological theory has been signi½cant- behavioral scientist who ½rst appreciat- ly influenced by biological theory ever ed the full implications of the “danger- since the publication of Charles Dar- ous idea” for the study of cultural and win’s The Origin of Species in 1859. But al- social change was the psychologist Don- though Karl Marx and Herbert Spencer ald T. Campbell (1916–1996). Camp- both paid tribute to Darwin, neither the bell’s argument for what he called “blind Historical Materialist followers of Marx variation and selective retention” as the nor the Social Darwinist followers of process driving intellectual discovery be- Spencer ever grasped the signi½cance of came well known to historians and soci- Darwin’s achievement in taking teleolo- ologists of science in the 1960s. But gy out of the concept of evolution alto- Campbell has also been a major influ- gether. ence on the analysis of cultural evolution Since then, other theories that are evo- as a process analogous but not reducible lutionary without being authentically to biological evolution, of which the Darwinian have also had careers of their leading current exponents are Robert own in sociology. The Neo-evolutionism Boyd and Peter J. Richerson. of the 1950s postulated a unilinear pro- The research program inspired by gression from bands to tribes to chief- Campbell has been overshadowed to doms to states, while the Modernization some degree by debates about sociobiol- theory of the 1960s projected tendencies ogy in which both supporters and oppo- nents of Edward O. Wilson assume that if neo-Darwinian theory can be applied W. G. Runciman is a Senior Research Fellow at to human social behavior at all it must Trinity College, Cambridge, and President of the be by direct application of the theory of British Academy. He has been a Foreign Honorary natural selection itself. But it has in- Member of the American Academy since 1986. creasingly come to be recognized across His most recent book, “The Social Animal,” was the human behavioral sciences (not least published in the United States in 2000. archaeology) that, as Campbell saw, what Darwin called “descent with modi-
Dædalus Spring 2002 133 Note by ½cation” furnishes the paradigm for uni- previous state, but not along any prede- W. G. versal nonteleological explanation of termined path or toward any predeter- Runciman teleological effects. mined end-state. This is not to deny that the growing in- At the same time, social scientists as fluence of neo-Darwinian theory on well as biologists have come increasingly sociology is partly due to the ways in to agree that what the process of selec- which natural selection now appears to tion selects are whatever units, or bun- explain more about human behavior dles, of information affect the observ- than all but a handful of twentieth-cen- able attributes of the various individual tury sociologists were willing to believe. organisms with minds whose behavior Neo-Darwinian behavioral ecologists, they seek to explain. It was the zoologist evolutionary psychologists, and behav- Richard Dawkins, in his book The Sel½sh ioral geneticists have all contributed Gene, who coined the term “meme” for ½ndings directly relevant to sociologists’ such units of cultural information in traditional concerns. Large twin and 1976. But a year earlier, the anthropolo- adoption studies are presently recasting gist F. T. Cloak had already pointed out the terms of the old debate over “nature that “The survival value of a cultural in- versus nurture,” and it is no longer as struction is the same as its function; it is surprising as it would have been ½fty its value for the survival/replication of years ago to ½nd the leading authority on itself or its replica(s).” Since Cloak and early Greek religion, the classicist Walter Dawkins, other researchers, including Burkert, tracing apotropaic and sacri½- the philosopher David Hull, have further cial rituals back to the biological inheri- clari½ed the relation between the units tance of the human species. But the idea of selection on whose extended pheno- that culture–de½ned as information (or, typic effects the environment brings more speci½cally, instructions) affecting selective pressure to bear and the organ- phenotype passing from mind to mind isms (with minds or without them) that by imitation or learning–can be mod- are their “vehicles” or “carriers.” eled as an inheritance system has given The claim of self-styled “memeticists” rise to a growing literature in which hu- to have founded a science analogous to man behavior patterns are explained by genetics remains controversial. But it is a reference to both the independent and virtual truism to say that the diversity of the reciprocal influences of natural and human cultures in the archaeological, cultural selection. historical, and ethnographic record is Of course, cultural transmission is in the outcome of heritable variation and many obvious ways different from gen- competitive selection of instructions af- etic transmission, not least in the capaci- fecting phenotype. The dif½culty, and ty of the receiving mind actively to rein- therefore the challenge, is to say exactly terpret the information transmitted. But how the process works and how far in cultural, as in natural, selection, infor- models drawn from population genetics mation governing behavior is being and game theory can usefully be applied transmitted with the possibility of muta- to it. tions whose relative chances of further For sociologists, however, whose con- replication and diffusion in response to cerns embrace not only cultural diversity the given environment determine the and change but institutional relation- direction in which the population ships of domination and subordination, evolves–evolves, that is, away from its “sociocultural” evolution is a process in
134 Dædalus Spring 2002 which the “social” may need to be ex- from general acceptance as the sugges- Darwin & plicitly distinguished from the “cultur- tion that there is an autonomous science sociological theory today al.” To take a familiar example, the evo- of “memetics.” lution of capitalist societies based on Three objections, in particular, are wage labor involves a good deal more quite widespread. The ½rst is that neo- than the mutation, replication, and dif- Darwinian sociology is no more than a fusion of cultural instructions transmit- purely metaphorical application of ted by parents, teachers, role models, or terms borrowed from biology; the sec- peer-group members. It also involves the ond is that selectionist theory denies the displacement of one complex set of purposive character of self-conscious linked institutional practices by a ½tter human agency; the third is that the idea one. The carriers of the mutant and re- of competitive selection implies a Pan- combinant practices are not just individ- glossian view that whatever has evolved uals learning from or imitating their is the best of possible worlds. mentors, but pairs or groups interacting To the ½rst objection, the answer is as incumbents of complementary social that much of the language of science in roles. general, and of biology in particular, is Capitalist employers and propertyless metaphorical and none the worse for it wage-workers both behave in accor- (e.g., “hitch-hiking” genes). The objec- dance with instructions encoded in in- tion would have force only if the vocabu- stitutional rules that govern their recip- lary of mutation, replication, and adap- rocal behavior toward one another as tation, when deployed in the context of such, whatever their individual traits. cultural and social selection, added The practices by which a society’s con- nothing meaningful to the language in stituent roles are de½ned can always be which social change was being narrated renegotiated by their carriers, just as the already. But it does; and it is neither memes by which a culture is de½ned can more nor less a metaphor in discussion be reinterpreted by theirs. But the evolu- of cultural and social than of biological tionary outcome depends not on the evolution to speak of behavior as driven hopes and wishes of the carriers whose by heritable information for which there hopes and wishes they are but on the is positive or negative selective bias. In- features of the ecological, demographic, formation transfer is no less real when it cultural, and social environment that is exosomatic than when it is genetic. If favor the replication of one bundle of “cultural selection” is a metaphor, then instructions over another. “natural selection” is too. Many sociologists are willing to accept To the second objection, the answer is that the unintended consequences of that neo-Darwinian theory, far from de- purposive actions explain more about nying that human (and not only human) the evolution of distinctive behavior pat- action is purposive, generates hypothe- terns than the purposive actions them- ses intended speci½cally to explain why selves. But the idea that practices, the instructions affecting phenotype car- memes, and genes should all be treated ried by one rather than another set of as units of competitive selection, and the purposive agents are replicated and dif- consequential threefold distinction be- fused. This is clearly apparent in game- tween “evoked” (i.e., instinctive), “ac- theoretic models where one chosen quired” (i.e., cultural), and “imposed” strategy (or, to take account of the mul- (i.e., institutional) behavior, are as far tiple algorithms involved, “strategy set”)
Dædalus Spring 2002 135 Note by displaces another in the population paradigm of heritable variation and W. G. under study. Perhaps the reason many competitive selection of instructions Runciman sociologists are reluctant to look at so- affecting phenotype. But it would be cial evolution in this way is that it re- wrong to underestimate the difference verses the conventional presupposition made when adaptation, de½ned not in that purposive agents are the driving terms of advantage to the carriers of the force of change and the environment is units of selection but to the units of the repository of obstacles standing in selection themselves, is seen as the driv- their way. In selectionist theory, by con- ing force of natural, cultural, and social trast, agents’ purposes are seen as more evolution alike. Not all mutations are or less random inputs into the evolution- adaptive. But it is those mutations that ary process, and the mistake to be avoid- are adaptive that have made species, cul- ed above all is that of falling into the tures, and societies of different kinds Genetic Fallacy whereby the cause of a into what we observe them to be. mutation is presumed to explain its The sociological agenda implied by effects. this way of looking at the world extends To the third objection, the answer is all the way from seeking to reconstruct that no more in cultural or social than in the evolution of social institutions as natural selection does heritable variation such in the period between the Upper result in anything more than relative Paleolithic and Neolithic “revolutions” replicatory advantage to one over anoth- (if such they were) to analyzing the er mutation within the population con- selection of competing practices that cerned. Competitive selection does, of will decide the future modes of produc- course, generate improvements in de- tion, persuasion, and coercion of the for- sign, as much in the “arms races” of the merly communist societies of Eastern animal world as in those of the weapons Europe in the twenty-½rst century. industry. But marginal relative improve- All evolutionary hypotheses risk being ment is very different from optimization criticized as “Just-So” stories, and in the by some absolute standard. Nor, in any absence of the quasi-experimental con- case, could a best of possible evolution- trasts which the archaeological, ethno- ary worlds ever be best for everyone. For graphic, and historical record so seldom all its short-term success, the human provides, the criticism may be dif½cult species may in the end be less successful to refute. But a Just-So story has to be than the bacteria. the right one, however hard it may be to Whether the by now unarguable influ- validate the counterfactual hypotheses ence of neo-Darwinian theory on the that it implies and to assign the correct human behavioral sciences amounts to a relative importance to the forces of natu- Kuhnian paradigm shift is largely a mat- ral, cultural, and social selection. ter of words. There is no radical incom- Some historical and comparative soci- mensurability of the kind that would ologists may ½nd the prospect more prevent neo-Darwinians and their oppo- daunting, rather than less, once deprived nents from understanding one another, of the spurious comfort of teleological and many behavioral scientists have put explanations underwritten by convic- forward explanations of cultural and so- tions of a Historical Materialist, Social cial change that, however they are word- Darwinist, or some other such kind. But ed, are not only innocent of teleological the task of sociological theory is no dif- presuppositions but consistent with the ferent from the task of biological theory
136 Dædalus Spring 2002 as formulated by Francis Crick: “to see through the clutter produced by evolu- tion to the basic mechanisms lying beneath them, realizing that they are likely to be overlaid by other, secondary mechanisms.” Roald Hoffmann on poetry & the language of science
There was a time when poetry and sci- ence–these two luxuriating, contraen- tropic glories of the human spirit– walked hand in hand: See the blind beggar dance, the cripple sing, the sot a hero, lunatic a king; The starving chemist in his golden views Supremely blest, the poet in his muse. Thus Alexander Pope (1688–1744) aligned–with his sharp wit–the muse of the poet with the “golden views” of the chemist.
Roald Hoffmann, Frank H. T. Rhodes Professor of Humane Letters at Cornell University, shared the Nobel Prize in Chemistry in 1981 for his theo- retical work on the course of chemical reactions. A Fellow of the American Academy since 1971, Hoffmann is a playwright, poet, and essayist as well as a chemist. His research group looks at the electronic structure of molecules of any complexi- ty, whether organic or inorganic, discrete molecu- lar structures, or extended arrays in one, two, or three dimensions; it is interested in why molecules have the structures they do, how they might react, and whether they are stable or good conductors.
Dædalus Spring 2002 137 Note by And not only in their delusions. . . . In novel metabolite,” “the ½rst synthesis,” Roald Pope’s day, it was not unusual for a ‘nat- “a general strategy,” “parameter-free Hoffmann ural philosopher’ to be both a poet and a calculations.” But on balance there is a chemist: trying to understand the world mind-deadening monotony to the lan- around and within us required all the re- guage–and this in a ½eld ½lled with sources of art and science. But in the be- fresh discoveries! ginning of the nineteenth century things I am as guilty of this as anyone else. changed. Small wonder–it was getting In Pope’s day, the scienti½c article was awfully dark, the smog and stink of the a personal, ½rst-person account, attest- industrial revolution coming down over ing to the reality of phenomena. That the Midlands and the Ruhr, and there changed in nineteenth-century Ger- were all these distracting wild noises, ro- many. In an effort to counter the perni- manticism beating its chest. cious (so it was perceived) influence of Art and science developed in divergent romanticism and its Naturphilosophen, ways. Most scientists took on a creative German scientists, formalizing what analysis of quality and quantity in na- their scientistic French colleagues had ture, yet one bound to prose in its meth- begun the century before, purged the sci- od, while most poets turned nature into enti½c article of its last vestigial links a mirror for the self. with poetry. The new ideal was dry, im- Shall we complain? One result has personal, dispassionate: the facts being been two centuries of glorious poetry, reported had to be believable indepen- from Goethe to Inger Christensen. An- dent of the identity or emotions of the other has been the greatest explosion of person reporting them. Neither the reliable knowledge that humanity has structure nor the causality of the facts ever seen. So what, if anything, was lost was to be prejudged. It followed that in this obviously productive divorce of ½ndings should be presented in the third art from science? person, and in a passive and cautious One answer will come if you open an voice. issue of a modern chemical periodical, I love the complexities of molecular for example Angewandte Chemie. Inside science. But I also know that its richness one ½nds riches upon riches: reports of was created by human beings. So I’m new discoveries and accounts of mar- unhappy to see a signi½cant part of the velous molecules, unmakeable and un- humanity of creative scientists being thinkable yesterday, made today, repro- suppressed in the way they express ducibly, with ease. themselves in print. The periodical arti- But look now at the way what is writ- cle system of transmitting new knowl- ten is, in fact, written. There is a ritual edge has worked remarkably well for form: “The structure, bonding, and two centuries or more. But there are real spectroscopy of molecules of type X have dangers implicit in its current canonical been subjects of intense interest.a-z” form. There is a general use of the third person By removing emotion, motivation, the and a passive voice. Accounts of histori- occasionally irrational, we may have in cal development are few and overtly ex- fact done much more than chase away pressed personal motivations nonexist- the Naturphilosophen. What we have cre- ent. Here and there in the neutered lan- ated is a mechanical, ritualized product guage one glimpses deflected personal that 6x105 times per year (that’s the claims of achievement or priority–“a rough number of chemical articles pub-
138 Dædalus Spring 2002 lished annually) propagates the notion The contemporary poets I most ad- Poetry & the that scientists are dry and insensitive, mire–such as the late A. R. Ammons– language of science that they respond only to wriggles in a are similarly subtle in the ways in which spectrum. they use language to trans½gure our per- I would argue for a general humaniza- ception of the natural world. Here, for tion of the publication process. The example, is his poem “Planes”: community should relax its strictures The whirlwind lifts against expressing emotions and person- sand to al motives. So what if it takes a little hide holy more space? As it is, we can keep up spun with the literature and tell without much emptiness or erect a trouble the mass of hack work from tall announcement what is truly innovative. And we recog- where formed nize hype ever so easily. I think we have emptiness is to be found much to gain from acknowledging more directly in our scienti½c papers the per- The image of the whirlwind is natural, sonal and emotional elements in our but the questions it raises are deeply struggle to discover, and create, the metaphysical: How is nothingness to be molecular world. de½ned? How are we to reconcile one of Admittedly, a young chemist trying to the essential tensions, the quietude carve out an academic career, and anx- sculpted by impelled motion? The ious to have his or her research pub- image also evokes the whirlwind in the lished in the established journals, is un- Book of Job, from which the Lord asks likely to follow my advice. Conservative Job: “Who put wisdom in the hidden editors and anonymous reviewers of sci- parts?” enti½c papers, struggling to ½nd some- Ammons’s poem also reveals another thing moderately intelligent to say, are characteristic of great poetry. I will likely to look askance at colloquialisms, clumsily call it “turning back to climb plain talk, and touches of literary style– higher.” Look at the word “holy” in the any language, in short, that deviates third line. It is unclear whether what is from the ossi½ed conventions of the sci- “holy” is sacred, or simply has a hole, or enti½c journal article. rather establishes an enriching acro- Indeed, I myself have had dif½culty in phonic relation to wholeness. “Holy” practicing what I preach. As a theoreti- becomes the center; to me the poem car- cian, I want to join a conversation oms back and forth around that word, among fellow chemists, in an effort to like a laser beam ampli½ed by mirrors. shape current thinking. Much of my au- It is sometimes said that scientists dience (which I take as graduate stu- have purged the world of poetry, because dents and young academics) would be they have reduced the miracle of the liv- put off if I wrote in an entirely offbeat ing world to a set of cold, hard facts way, inventing batteries of neologisms. gained by the logic of dissection. Surely So on matters of style, I go easy. Still, this cannot be right. What I know as a here and there I do sometimes try to scientist about the physics of whirlwinds sneak in a word or a phrase that may does not diminish my pleasure in the momentarily shock the reader into the natural phenomenon. Or the poet’s lan- realization that he or she is empowered guage. to see things in a different light. Few writers, of course, can turn that
Dædalus Spring 2002 139 Note by kind of scienti½c knowledge into poetry. Roald Tsunami Hoffmann That Ammons was one means only that he was a very great poet–not that mod- A soliton is ern science and poetry are irreconcilable. a singularity As for myself, I have no problems of wave doing research as a scientist and trying motion, an edge to write poetry. Even if these activities traveling just are most often not in the same space- that way. We saw time. Both science and poetry emerge one, once from an attempt to understand the uni- ½lmed moving heed- verse around us–and from a wish to lessly cross share that understanding with others in a platinum surface. words. Solitons pass I think there is, in fact, a richness in through the scienti½c background, which in the each hands of someone better than myself other might be a real advantage in writing unperturbed. poetry. After all, the language of science is a You are a wave. language under constant stress. The Not standing, nor practice of science demands precise traveling, satisfying meanings–which must be de½ned in no equation. beautifully imprecise words. Mathe- You are a wave matical equations and chemical struc- which will not be (Fourier) tures are absolutely necessary. To be ex- analyzed. plained in words. New concepts, begging You are a wave; in for new words, force themselves on us. your eyes I sink Because it is a natural language, yet willingly. always under tension, the language of science is inherently poetic. Which may Not solitons, be why this chemist feels compelled to we can’t pass through turn his understanding of science into unaltered. poetry. –r. h.
140 Dædalus Spring 2002 Letters to the Editor of Dædalus
Terrorism & evil “death” became the “fundamental prob- lem” after World War I. Endorsing this February 24, 2002 view, he discusses the attack on the Unit- To the Editor: ed States as a case of what Arendt called “radical evil.” Her statement, however, I was dissatis½ed by the “comment” by is incorrigibly abstract and false in its Ira Katznelson on “Evil & politics,” in application to the circumstances. Death the Winter 2002 issue of Dædalus. The and evil have always been a problem for essay’s importance is underlined by its religion and philosophy, and their con- placement at the beginning of the ½rst templation remains a pro½tless exercise issue of the American Academy’s distin- unless we accept them as inevitable facts guished journal in its redesigned format of human existence. After the ½rst great under a new editor. It is evidently in- war of 1914–1918, the fundamental tended as an expression of response to problem for serious intellectual life was the terrorist attack on the United States not death, but economic depression, last September 11, and as such, however communist rule in the ussr and its well-meaning, it seems to me to fail bad- impact, and the rise of Italian Fascism ly. Its misty abstractness, moral flabbi- and German National Socialism with ness, and ambivalence make it almost ir- their thrust toward aggression and war. relevant as a reaction to the magnitude After the war of 1939–1945, the problem of the events of that September day and was not radical evil, but the containment their consequences. In his discussion of of Soviet communism, the avoidance of the subject, Katznelson gives no sign of nuclear war, and the effort to achieve a having even attempted to achieve an historical understanding of how Ger- imaginative realization of the suffering, many, a modern civilized state, could damage, and loss of life caused by the have come under the rule of the criminal terrorists’ attack. He says nothing con- Nazi regime and been responsible for the cerning its import as an act of war genocidal destruction of the Jews and against the American people, nor about the mass murder of other peoples in vio- the proof it provides of our previous fail- lation of all the dictates of humanity and ure to understand the Islamic world and the rules of war. the forces within it that harbor and culti- Pursuing the theme of evil, Katznelson vate a deadly envy, hatred, and enmity of speaks of “some intellectual circles” free and open pluralistic societies. whose denunciation of the terrorist acts Katznelson unhappily decided to base as evil has been accompanied by “a far his article on the theme of “radical evil” too simple justi½cation of liberalism and taken from Hannah Arendt, and quotes the Enlightenment” and who see behav- her words that the fundamental ques- ior as evil only when it attacks “the val- tion of intellectual life after World War ued goods proffered by Western moder- II was “the problem of evil,” just as nity.” He then mentions “other intellec-
Dædalus Spring 2002 141 Letters to tual circles” who focus on the evils of work, a campaign undertaken despite the Editor postcolonialism and global capitalism’s the dire warnings from some “intellectu- exploitation of the world and according- al circles” in America and Europe that a ly consider the events of September 11 direct military response to terrorism “in a cooler, sometimes icy, register.” would lead to disaster and that we Why does he not tell us who these ½rst should deal with the root causes of ter- intellectual circles are to which he so rorism through substantial foreign aid to vaguely refers, where they are to be poor countries and a sweeping change in found, and what precisely are their one- our foreign policy. Nor has he anything sided opinions in justi½cation of liberal- to say of the future of the antiterrorist ism? And why does he not for once struggle and what the United States come down to Earth and say plainly that should do to ward off the very real dan- the second of these intellectual circles ger of nuclear, chemical, and biological consists to a considerable extent of left- warfare waged against it by rogue states leaning academics in America and like Iraq or by terrorist groups that they Europe who have demonstrated not their sponsor. coolness and iciness but their moral and Katznelson wonders whether “the political stupidity and callousness by Western liberal tradition can effectively blaming the United States for deservedly contest radical evil without sacri½cing bringing the attack of September 11 upon its own best features.” He thinks it can, itself by its wicked policies over the but only if it ½nds a way to engage with years in the Middle East and other parts “nonliberal beliefs and cultures without of the world? dismissing them too hastily as irremedi- It would be easy to pick apart other ably antiliberal.” He also holds out the pretentious and empty formulations in prospect of ultimately converting these Katznelson’s article that reveal his re- cultures to the universal liberal values moteness from the reality he professes to that, while Western in origin, have now be discussing. He worries, for instance, become global. With his usual lack of that a “rote defense of liberalism” could concreteness, however, he neglects to authorize a new brand of colonialism point out that the most important pres- that would again make many non-West- ent challenge to this country comes from ern peoples “ineligible” for the “core the danger of terrorism itself and the values of rights, toleration, participa- priorities it imposes on us. In the conclu- tion, and consent.” I can make nothing sion of his article he suggests that it of this statement. What is this “rote won’t be the war on terrorism that de- defense of liberalism” and who are its ½nes the early twenty-½rst century, but promulgators? Katznelson addresses his rather the series of battles for the soul of readers in the name of liberalism, but liberalism. This is certainly a partial and one might suppose from some of his self-centered way of analyzing our situa- remarks that the world is in nearly as tion in the new century. Liberalism is a much danger from the sins of liberalism hardy growth that has strong roots in as it is from Islamic terrorism. It is sur- contemporary Western civilization. Its prising that he omits any mention of the soul is not in question. What is in ques- remarkable military success of the tion at the present juncture is its intelli- United States and its allies in their few gence and whether those who claim, like months’ campaign in Afghanistan Katznelson, to speak on behalf of liberal- against the Taliban and terrorist net- ism will possess the political clarity and
142 Dædalus Spring 2002 resolution to give consistent support to Professor Zagorin badly misreads (or Terrorism & the struggle against terrorism as the has not read) The Origins of Totalitarian- evil greatest danger that now faces us and to ism. He writes as if the attempt in that the effort necessary to destroy its organi- book to turn a traditionally theological zation, leadership, and sponsors. concept into a tool for the systematic analysis of twentieth-century desolation Perez Zagorin were intended by its author to be an Charlottesville, va alternative to historical accounts of the terrible regimes and barbaric practices Perez Zagorin is Joseph C. Wilson Professor of in the West in the twentieth century. History, Emeritus, at the University of Rochester Nothing could be further from an accu- and a Fellow of the Shannon Center for Advanced rate characterization. After all, Arendt Studies at the University of Virginia. He has been placed radical evil, the practices and a Fellow of the American Academy since 1976. ideas that made human beings superflu- ous by erasing their moral and juridical status, at the core of her assessment of the camps and the terror in Hitler’s March 12, 2002 Reich and Stalin’s Soviet Union. For Ira Katznelson replies: Arendt, the developments enumerated by Professor Zagorin constituted a rup- As it turns out, I was reading Hannah ture in human affairs so profound that Arendt’s 1953 reply to Eric Voegelin’s “all traditional elements of our political sharp objections to The Origins of Totali- and spiritual world were dissolved.” For tarianism when Perez Zagorin’s tough just this reason, she rejected Voegelin’s fault½nding came to my attention. trans-historical assessment of the dark Tempted as I am to respond in kind–I side of human nature, just the sort Pro- take no pleasure in being upbraided by a fessor Zagorin advances when he writes distinguished intellectual historian of about death and evil as “inevitable facts early modern Europe for flabby and of human existence.” At this level of misty abstractness, empty and preten- abstraction, who could differ? But how tious formulations, even a lack of empa- death and evil are caused–by whom, for thy for “suffering, damage, and loss of what purposes, and by what means– life”–I will try to follow the example set were Arendt’s issues. As she predicted, by Arendt by addressing the substance, they sadly remain ours. not the shrill and hectoring tone, of Regarding the current scholarly cli- Zagorin’s critique. mate, Professor Zagorin would like me I also will leave aside Professor Za- to side with him. I cannot, for I resist the gorin’s observations concerning current simple terms he submits. I reject, as does events about which neither he nor I has he, appraisals of modernity that discard any special expertise or original contri- liberalism and the tradition of the En- bution to offer. I comment, instead, on lightenment and discredit the values of the partially overlapping principal sub- toleration, reason, freedom, rights, and jects in his critique: the salience and sig- consent as hallmarks of hypocrisy and ni½cance of Arendt’s considerations on masks for domination. I nevertheless radical evil, the state of debate in Ameri- refuse to join him in his surprisingly can intellectual life, and the qualities of ahistorical justi½cation for liberalism modern political liberalism. and the Enlightenment as innocent, un-
Dædalus Spring 2002 143 Letters to tainted enemies of darkness, an exces- sion? How would he seek to array its in- the Editor sively self-satis½ed stance that Professor stitutions? Which liberties might he sac- Zagorin’s letter exempli½es. These, I ri½ce to battle terror? Why, ½nally, does insist, are not, and must not be, the only the history of the last brutal century two positions on offer. make him so complacent about liberal- Let there be no mistake. I am a liberal. ism’s invincibility? Nowhere do I imply, as he suggests, that “the world is in nearly as much danger from the sins of liberalism as . . . from Regarding the word “race” Islamic terrorism.” But I understand the liberal tradition not to be a closed or March 1, 2002 ½xed location, but a bounded site for contests about its content and capaci- To the Editor: ties. Such controversies include debates In their essays in the Winter 2002 issue about its range of membership and its of Dædalus, both James F. Crow and scope for pluralism. In stating my out- Ernst Mayr dwell on the concept of race. look, I identi½ed these, among others, as Both recognize that it is a geographic basic puzzles Western–indeed, global– concept, a concept that embraces “inter- liberalism still must address. I stand by breeding.” That Eskimos and Australian these views, which were reinforced aborigines, for example, may resemble when I read Professor Zagorin’s prose one another in some manner does not about “the Islamic world and the forces place them in the same race: they do not within it that harbor and cultivate a normally interbreed; they are geographi- deadly envy, hatred, and enmity of free cally isolated. Geneticists have another and open pluralistic societies,” as if term that covers such similarities: phe- these traits were especially or necessarily notype. more robust within these countries than Mayr, more than Crow, stresses the in, say, Cambodia, China, Germany, Rus- term “geographic race,” ostensibly an sia, or South Africa in his and my life- unambiguous concept. Indeed, Mayr, as times. does Joseph L. Graves, Jr., in his book, When Professor Zagorin does not, or The Emperor’s New Clothes (2001), equates cannot, disagree, he changes the subject. “geographical race” with “subspecies.” Rather than deal with the pressing pres- Thus, Mayr seems to accept that the hu- ent conundrum of how liberals might man species at one time consisted of best engage with nonliberal cultures and subspecies, whereas Graves argues that beliefs, he reminds us that terrorists are time has been too brief for human sub- a real threat we must defeat. Surely this speciation to occur. Crow recognizes that is so. Yet wars on terrorism–hot or cold, the major geographic races– African, overt or covert, narrowly targeted or European, and Asiatic–are now “mixed,” broadly circumscribed–cannot de½ne but, in his opinion, this does not negate the kind of liberalism we should wish to the usefulness of the word “race”; as he have. Professor Zagorin tells us not to says: “I believe that the word ‘race’ can worry, that “liberalism is a hardy growth be meaningfully applied to groups that that has strong roots in contemporary are partially mixed.” Western civilization.” But exactly which I also believe that the word “race” can liberalism does he have in mind? Where be useful; if it did not exist, another would he situate its boundaries of exclu- word would soon be invented in its
144 Dædalus Spring 2002 place. Unlike Crow and Mayr, however, I were said to be inconsequential. Here, in Regarding the word regard “race” as a term of convenience– Provine’s opinion, was an abrupt change “race” and one too often used to disenfranchise in the attitude of scientists that was not pseudoscienti½cally de½ned groups of based on new scienti½c evidence. Pre– human beings. World War II, races are important; My reference to race as a legitimate post–World War II (presumably in re- “term of convenience” can be illustrated vulsion to Nazi doctrines), races are by a hypothetical example. When travel- unimportant. ing south to Winston-Salem, North Car- Overlooked by Provine, in my opin- olina, I travel on Interstate I-77. As I ap- ion, was the changed de½nition of proach the North Carolina-Virginia state “race.” Before World War II, species line, I encounter a splendid view of the were identi½ed by visible, morphological North Carolina Piedmont lying hun- characteristics. Pinned specimens in dreds of feet below the mountainside on museum cabinets were the taxonomist’s which I am traveling. As a student of arbiters for classi½cation. When experi- Drosophila, I might have noticed that the mental biologists discovered that vari- flies living in the Piedmont area are ous morphologically similar (even iden- lighter in color than those that are found tical) geographic strains were reproduc- at the higher elevation. In discussing this tively isolated from one another (hy- fact with colleagues, I would refer to the brids being inviable or sterile), these Piedmont and the montane races. strains were referred to as “races.” A second Drosophilist might study Largely through the efforts of Mayr biochemical variation in the same spe- and others, such as Theodosius Dob- cies of flies. For unknown reasons–per- zhansky and G. Ledyard Stebbins, the haps because of differences in the soil or taxonomic species concept of race was in the flora of this region–flies inhabit- replaced by a “biological” concept. ing areas to the east of I-77 may be large- Former “races” such as race A and race B ly characterized by possessing one form of Drosophila pseudobscura were reclas- of a particular enzyme, while those si½ed as species. Consequently, the pre– found beyond I-77 to the west have a dif- World War II races that included distinct ferent molecular form of the same en- species (thus justifying the notion that zyme. In describing his (or her) observa- “racial” differences are important) gave tions, that colleague might refer to the way to post–World War II races that, to east and west races of that species; a large extent, are merely convenient again, that terminology would be a mat- labels, as illustrated above. ter of convenience. In both instances– In this regard, Graves’s contention north/south with respect to color; that the human species does not include east/west with respect to biochemical well-de½ned subspecies is correct. At the differences–a word is needed for the same time, the human species does in- sake of discourse; thus, “race.” clude races (where “race” is a descriptive In the past, I have heard Will Provine, term of convenience). Cornell University’s historian of science, Still, Crow’s contention that, even discuss the changing views of biologists though they are partially mixed, the regarding race that occurred during and term “race” is useful requires further following World War II. Before the war, comment. In 1953, H. Bentley Glass and racial differences were said to be impor- C. C. Li published an account of the in- tant; after the war, racial differences termixture of Europeans (white) and
Dædalus Spring 2002 145 Letters to Africans (black) in the United States. be meaningfully applied to groups that the Editor They calculated that 30 percent or more are partially mixed”? In effect, the of the genes found among blacks had meaningfulness depends on the social their origin in the white population. value we attach to racial pro½ling. Glass Why didn’t Glass and Li also calculate and Li, in their study of two generations the proportion of genes that were car- ago, calculated that nearly one-third of ried by whites but have their origins in the genes carried by Afro-Americans Africa? In part, because blacks represent were of Caucasian origin; that propor- a relatively small percentage of the u.s. tion today probably exceeds 40 percent. population. Suppose, for example, that In a subsequent study, T. E. Reed (1969) two tablespoons of water are exchanged showed that the Glass-Li estimate was between a cup of boiling water and a gal- an average; the degree of mixing de- lon of cold water. The amount exchanged pends largely on locality within the can be estimated more accurately from United States: 8–10 percent per genera- the change of temperature in the cup tion in California, Michigan, and New than that in the much larger container of York; 1–3 percent in Georgia and South cold water. Carolina. In Northern metropolitan Aside from the technical point raised areas and in California, the proportion in the previous paragraph, there is an- of “white” genes in “black” populations other reason for studying the flow of today more than likely exceeds 50 per- genes from whites to blacks: by the de½- cent. nition generally accepted by Americans, My conclusion? “Race” in the Ameri- black genes cannot enter the white pop- can context is largely a term of discrimi- ulation! Anyone with a black ancestor is nation, of disenfranchisement, and of regarded as black. The possession of any bigotry; it serves no useful purpose–not gene that is characteristic of Africans even with respect to screening for other- makes its carrier Afro-American by de½- wise commendable medical purposes. nition. That de½nition is foolish, of course. Its underlying logic led one of Bruce Wallace Haiti’s presidents to assert that some 95 Blacksburg, va percent of all Haitians are white! That is the conclusion that logically follows Bruce Wallace, a Fellow of the American Acade- from the inverse of the American de½ni- my since 1971, is University Distinguished Profes- tion: any person who has a white ances- sor Emeritus at Virginia Polytechnic Institute and tor is white, by de½nition. State University. These foolish, inconsistent de½nitions of race are the ones that must be exposed and discarded. Afro-Americans recently held a congress in Philadelphia. The The virtues of inequality range of phenotypes both among pan- elists and among members of the audi- February 25, 2002 ence was huge. The only commonality To the Editor: was that these persons considered them- selves to be Afro-Americans, probably I have read the Winter 2002 issue of because of the treatment they generally Dædalus on inequality and ½nd myself receive from the “white” population. both disappointed and puzzled by it. What of Crow’s view “that ‘race’ can With the exception of Christopher
146 Dædalus Spring 2002 Jencks, no one attempted to address the decline in infant mortality among the The virtues effects or consequences of inequality. poorest of nations. of inequality There is no discussion of the optimal Developments in the decline in infant amount of inequality, which would seem mortality that have occurred in the reasonable to have included. But my world suggest that in discussions of in- major complaint is that the scope of equality we should at least stop to ask if inequality that was discussed was very the most disadvantaged have gained or limited: namely, to inequality of income. lost absolutely when inequality increas- So far as I could tell, no one systemati- es. The decline in infant mortality in cally discussed the inequality of con- low-income countries has occurred at a sumption, which at least in the United much lower level of income than similar States is far more equally distributed declines were achieved in the industrial than is income. Has inequality increased countries and came at roughly the same between countries in such important annual rate. Thus, something has hap- measures of well-being as life expectan- pened in the world–globalization–that cy and infant mortality? If there has has bene½ted the people of low-income been an increase in inequality, is this countries. necessarily bad? Not so very long ago there was rela- Let us look at life expectancy by coun- tively little inequality in the world. The try. Between 1960 and 1996 life expectan- World Bank estimates that in 1820, 75 cy in 33 low-income countries increased percent of the world’s population lived from 44 to 64 years. And inequality on less than $1 per day (1993 prices). among the nations of the world fell for How many of us would want to return to this important indicator of well-being, that world? with inequality measured by the ratio of D. Gale Johnson the standard deviation of the country Chicago, il data divided by the mean–this ratio was smaller in 1996 than in 1960. But on a re- p.s. The World Bank does not create the lated measure, inequality increased. In Human Development Report (p. 12); it is a 30 low-income countries infant mortali- product of the United Nations Develop- ty declined from 157 per thousand births ment Programme. The World Bank pro- in 1960 to 62 in 1996, a decline of 62 per- duces the World Development Report. cent in 36 years. But inequality, as meas- ured by the coef½cient of variation, in- creased, because the percentage of de- D. Gale Johnson, a Fellow of the American Acad- cline in high-income countries was even emy since 1976, is a professor of economics at the greater. However, the increase in in- University of Chicago. equality was accompanied by a major
Dædalus Spring 2002 147 President Patricia Meyer Spacks Executive Of½cer Leslie Cohen Berlowitz Vice President Louis W. Cabot Secretary Emilio Bizzi Treasurer Peter S. Lynch Editor Steven Marcus Vice President, Midwest Center Martin Dworkin Vice President, Western Center John R. Hogness
Daedalus Board of Editors Committee Steven Marcus, Chair, ex of½cio, Joyce Appleby, Russell Banks, Stanley Hoffmann, Donald Kennedy, Martha C. Nussbaum, Neil J. Smelser, Rosanna Warren, Steven Weinberg; ex of½cio: Patricia Meyer Spacks, Leslie C. Berlowitz
Committee on Publications & Public Relations Guy W. Nichols, Chair, Emilio Bizzi, Joan Bok, Jesse H. Choper, Denis Donoghue, Jerome Kagan, Jerrold Meinwald; ex of½cio: Patricia Meyer Spacks, Steven Marcus, Leslie C. Berlowitz
Inside back cover: A web advertisement for the world’s ½rst patented animal, produced and distributed by Taconic Farms, Inc. of German- town, New York. Taconic’s distribution of the v-ha-Ras(TG.AC) OncoMouse™ Transgenic Model, whose germ-line contains an activated oncogene, is covered by an exclusive worldwide license from DuPont pertaining to rights under U.S. Patent 4,736,866 and other related and corresponding patents. See Daniel J. Kevles, Of mice & money, pages 78–88. ' '---s '-,>· '
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on education Diane Ravitch, Howard Gardner, Theodore Sizer, E. D. Hirsch, Jr., Journal of the American Academy of Arts & Sciences after the Deborah Meier, Patricia Graham, Thomas Bender, Joyce Appleby, culture wars Robert Boyers, Catharine Stimpson, Andrew Delbanco, Jeffrey Spring 2002 Mirel, plus a classic text by Antonio Gramsci, Joel Cohen & David Bloom on universal education as a global project, a story by Spring 2002: on intellectual property Madison Smartt Bell, a poem by Larissa Szporluk, and notes by Donald Kennedy, Arthur Kantrowitz, Richard Sennett, and on intellectual Richard A. Posner The law & economics of intellectual property Richard Shweder property James Boyle Fencing off ideas 13 Carla Hesse Intellectual property, 700 b.c.–a.d. 2000 26 on beauty Susan Sontag, Arthur C. Danto, Denis Donoghue, Dave Hickey, Arthur Goldhammer On Diderot & Condorcet 46 Alexander Nehamas, Robert Campbell, David Carrier, Margo Jefferson, Kathy L. Peiss, and Nancy Etcoff Diderot Letter on the book trade 48 Condorcet Freedom of the press 57 on international Stanley Hoffmann, Martha C. Nussbaum, Jean Bethke Elshtain, Roger Chartier Property & privilege in the republic of letter justice Stephen Krasner & Jack Goldsmith, Gary Bass, David Rieff, Adrian Johns Pop music pirate hunters 67 Anne-Marie Slaughter, Charles R. Beitz, Jonathan Schell, Carl Kaysen & George Rathjens, and Anthony Lewis Daniel J. Kevles Of mice & money 78 Rebecca S. Eisenberg & Richard R. Nelson Public vs. proprietary science 89 on time Thomas Gold, Michael Rosbash, Danielle Allen, Mary Douglas, Marcia Angell Anthony Grafton, J. Hillis Miller, David S. Landes, Michael & Arnold S. Relman Patents, pro½ts & American medicine 102 Gazzaniga, D. Graham Burnett, and Richard K. Fenn
poetry Paul Muldoon Unapproved road 112 on the meaning Alan Lightman, Evelyn Fox Keller, Peter Wolynes, Susan Haack, of science David Pingree, Peter Pesic, Margaret C. Jacob, and others ½ction Frederick Busch The rescue mission 115
on secularization a symposium featuring Martin E. Marty, Nikki Keddie, Henry notes Wendy Doniger on the Kamasutra 126 & fundamentalism Munson, and others Leo Breiman on McCarthyism at Berkeley 130 W. G. Runciman on Darwinism & sociology 133 Roald Hoffmann on poetry & science 137
letters on terrorism & evil, the concept of race, the virtues of inequality &c. 141 U.S. $9.95/Canada $12.95