University of Pennsylvania ScholarlyCommons Scholarship at Penn Libraries Penn Libraries 3-2016 Common Knowledge: Epistemology and the Beginnings of Copyright Law Jonathan Scott Enderle University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/library_papers Part of the Epistemology Commons, History of Philosophy Commons, Intellectual History Commons, Intellectual Property Law Commons, Law and Philosophy Commons, Legal History Commons, and the Literature in English, British Isles Commons Recommended Citation Enderle, J. (2016). Common Knowledge: Epistemology and the Beginnings of Copyright Law. PMLA, 131 (2), 289-306. http://dx.doi.org/10.1632/pmla.2016.131.2.289 This paper is posted at ScholarlyCommons. https://repository.upenn.edu/library_papers/92 For more information, please contact [email protected]. Common Knowledge: Epistemology and the Beginnings of Copyright Law Abstract Literary critics’ engagement with copyright law has often emphasized ontological questions about the relation between idealized texts and their material embodiments. This essay turns toward a different set of questions—about the role of texts in the communication of knowledge. Developing an alternative intellectual genealogy of copyright law grounded in the eighteenth-century contest between innatism and empiricism, I argue that jurists like William Blackstone and poets like Edward Young drew on Locke’s theories of ideas to articulate a new understanding of writing as uncommunicative expression. Innatists understood texts as tools that could enable transparent communication through a shared stock of innate ideas, but by denying the existence of innate ideas empiricists called the possibility of communication into question. And in their arguments for perpetual copyright protection, eighteenth-century jurists and pamphleteers pushed empiricism to its extreme, linking literary and economic value to the least communicative aspects of a text. Keywords English literature, 1600-1699, Seventeenth Century, Locke, John (1632-1704), Essay concerning Human Understanding (1690), knowledge, idea, epistemology, copyright law, Cambridge Platonists, Young, Edward (1683-1765), Conjectures on Original Composition (1759), Blackstone, Sir William (1723-1780), 1700-1799, Eighteenth Century Disciplines English Language and Literature | Epistemology | History of Philosophy | Intellectual History | Intellectual Property Law | Law and Philosophy | Legal History | Literature in English, British Isles This journal article is available at ScholarlyCommons: https://repository.upenn.edu/library_papers/92 131.2 ] Common Knowledge: Epistemology and the Beginnings of Copyright Law jonathan scott enderle HAT IS A TEXT? THAT QUESTION IS FRAUGHT WITH ONTOLOG- Wical uncertainty. Are texts nothing more than their physical manifestations? Or can we meaningfully speak of texts as abstractions that transcend the context of their embodiment? Lit- erary scholars and copyright lawyers have generally held diferent views on these questions. In recent decades, interest in material cul- ture has spurred many literary scholars to identify texts with spe- ciic objects: quires of printed paper bound with fabric, board, and glue; bundles of handwritten pages tied with twine; or corporeal, albeit ephemeral, patterns of electrical signals rendered on a screen. But that approach jars with the doctrines of copyright law, which imagines texts as intangible, immaterial, and wholly indiferent to the arbitrary physical bodies—books, manuscripts, or screens—that serve as their vessels. For that reason many literary scholars since the 1980s have looked askance at copyright law, even as they have emphasized its historical signiicance; a view of texts as things that transcend their contingent material origins is bound to be met with skepticism by a critical mainstream suspicious of the metaphysics of presence and grounded in the methods of historical materialism. At its most skeptical, this mainstream regarded copyright as an ideo- logical imposture, or even as a quasi- religious institution.1 Ontological concerns like these have structured thought about JONATHAN SCOTT ENDERLE , a digital copyright since the beginnings of the Romantic period. In the late humanities specialist at the University eighteenth century, an anonymous German bookseller wrote that of Pennsylvania, is completing a book “the book is not an ideal object. [I] t is a fabrication made of paper. manuscript on the epistemology of literary communication in eighteenth- . [I] t does not contain thoughts; these must arise in the mind of the century Britain. His recent work focuses comprehending reader. It is a commodity produced for hard cash,” on theoretical foundations of statistical while Johann Fichte argued to the contrary that a book embodies modeling in the humanities. an irreducible fragment of its author’s intellect: “each individual has © 2016 jonathan scott enderle PMLA 131.2 (2016), published by the Modern Language Association of America 289 290 Common Knowledge: Epistemology and the Beginnings of Copyright Law [ PMLA his own thought processes, his own way of from, how it is transferred, and whether it forming concepts and connecting them. can ever be truly private. These questions [N] o one can appropriate his thoughts with- concerned not what texts were but what they out thereby altering their form. This latter did—the roles they played in the creation, de- thus remains forever his exclusive property” velopment, and dissemination of knowledge. (qtd. in Woodmansee 443–45). These com- By bracketing ontological concerns in peting accounts agree that the legitimacy of favor of the epistemological question What copyright depends on the relations we posit do texts do?, this essay explores an alternative between idealized forms and physical objects. intellectual genealogy of copyright law that This way of thinking postdates the rise of troubles familiar associations between liter- copyright law in En gland. Fichte’s Romantic, ary property, textual stability, interpretive post- Kantian idealism and the bookseller’s closure, and transcendental authorial pres- proto- Marxist materialism were both ges- ence. The material turn in literary studies tating at least eighty years after the British has seemed to repudiate those closely linked Parliament passed the irst copyright law, the ideas. The material text, subject to contin- Statute of Anne, in 1710. gency and decay, is an irreducibly noisy chan- his essay outlines an intellectual history nel of communication. The literary work it of the beginnings of copyright law unencum- embodies is not the immutable creation of a bered by these characteristically nineteenth- sovereign poetic will; it is the luid product of century questions about the ontological status multiple collaborators, iltered through a di- of the material and the ideal, which continue vided poetic consciousness and misprinted on to shape literary scholarship’s engagement fragile slips of paper. Copyright relies on the with copyright. Rather than ask what texts text’s transcendence, and it is unsettled by the are, I ask what texts do. Scholars have seen text’s corporeality. But in eighteenth- century copyright either as the beginning of a pro- Britain this neat alignment of categories did gressive new regime of intellectual property not hold. Many of copyright’s boldest advo- or as an early symptom of capitalism’s drive cates emphasized textual contingency and to commoditize ever- more- abstract entities. instability, while its most stubborn detrac- Neither of these points of view adequately tors insisted on the ixity and ideality of the characterizes the attitudes of the think- literary work. From the perspective of many ers and jurists of the eighteenth century. To eighteenth- century thinkers, literary prop- gain a clearer picture of the complex and di- erty is airmed by an authorial absence, an vergent interpretations of copyright law in indication that the text has failed to serve as a eighteenth- century Britain and their impact transparent channel of communication, fully on textual production, reproduction, distribu- connecting readers and authors. A history of tion, and reception, critics and scholars need copyright that can make sense of this surpris- to shit their attention from ontological ques- ing coniguration of concepts could produce tions to epistemological ones. What matters new insights into questions that are driving is not whether there can or ought to be such a current trends in literary thought—questions thing as incorporeal property. What matters about the relation between the phenomenal are the ways eighteenth- century individuals and the given and their role in the production conceptualized their own practices as authors and consumption of communicative matter. and readers. In some cases jurists and pam- his essay tells such a history, grounded phleteers quibbled over ontological questions, in seventeenth- and eighteenth- century epis- but their quibbles masked deeper divisions, temological debates that pitted innatism over knowledge—what it is, where it comes against empiricism. Innatists held the view 131.2 ] Jonathan Scott Enderle 291 that all individuals share the same intrinsic petualists saw in this Lockean view of ideas ideas from birth, while empiricists believed an opportunity to extend copyright protec- that ideas are produced only by experience tion indeinitely. However, by denying the ex- and are therefore unique to individuals.