Simon Stern, "Copyright as a Property Right? Authorial Perspectives in Eighteenth-Century England," 8 U.C.Irvine L. Rev. 461 (2019)


In recent decades, various scholars have questioned the proposition that copyright must necessarily be rooted entirely in a property paradigm, and have sought to show how, over the last century and a half or so, that paradigm has been applied increasingly strictly and its logic has been extended with ever greater force. In response, others have contended that copyright has always been understood as a property right. An examination of eighteenth-century sources shows that the conception of copyright as a form of property was neither the only, nor even the dominant, paradigm in circulation at the time. Moreover, when studying these sources, we must ask who is using the language of property: judges, members of the bookselling industry and their lawyers, writers and their counsel, or some combination of these? Building on earlier work that traces some aspects of the property framework as it developed in eighteenth-century British jurisprudence, I show how members of the publishing industry were able to convert the liability rule furnished by the Statute of Anne into a property rule. Next, shifting the focus to contemporaneous writers, I show that they were far cagier about the language of property than were their colleagues in the bookselling industry, sometimes adopting this language equivocally, sometimes repudiating it emphatically. Finally, looking at eighteenth-century literary culture more generally, I note that accusations of plagiarism and the convention of the “found manuscript”--both of which would seem (to modern eyes) to be redolent with concerns about property--were rarely if ever couched in these terms. I conclude that discovering the word “property” in eighteenth-century discussions of copyright marks the beginning, not the end, of an inquiry into its significance at this time.