ædalus coming up in Dædalus: Dædalus 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 5 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 letters 60 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, profits & 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 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 classi½ca- mount. First, without exclusive rights to tions is again drawn from computer soft- the use of tracts of land or other valuable ware. Software manufacturers increas- physical objects, these properties would ingly are bypassing the limitations (dis- be overused–if anyone has the right to cussed below) on the duration and scope graze his cattle on a pasture, the pasture of copyrights by selling directly to their will be overgrazed and hence depleted customers, pursuant to contracts that prematurely, because each cattle owner limit the customer’s rights in the soft- will tend to ignore the costs that the ware more tightly than copyright would grazing by his cattle imposes on the do. The signi½cance of intellectual prop- other users of the pasture. Second, with- erty rights, as of rights to physical prop- out exclusive rights, there will be insuf½- erty, is that they are enforceable against cient incentives to invest in improving strangers. A trespass is enjoinable even if property: if you cannot be assured of the trespasser never promised not to being able to reap where you have sown, enter your land. But if the only people you won’t sow, and the land will lie fal- who have access to your property hap- low. pen to be people with whom you have a It is understood, however, that the contract, you can regulate their access by social bene½ts of property rights must be means of contract and forget about balanced against the costs. When prop- 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 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 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 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 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