Copyright and Intellectual Property: The State of the Discipline

Copyright and Intellectual PropertyThe State of the Discipline Meredith L. McGill (bio) Twenty-first-century scholars have grown accustomed to having their research and teaching hedged about by concerns over intellectual property. Signing onto a library gateway web page or course-management software, clicking through a digital licensing agreement for an upgrade to an operating system or application, scanning a book chapter to circulate to a class, downloading a podcast, or simply linking to an image on a personal blog, we are vaguely aware that there are property rights at stake in our actions. While in many cases we thoughtlessly consent to sharp restrictions to our rights as the price of access, scholars also often disregard the letter of the law, either through ignorance or on the assumption that the nonprofit, educational circulation of texts ought be exempt from strict adherence to copyright (under a generous, if inaccurate, definition of fair use). Our everyday experience of the opportunities and confusion produced by media shift, and our awareness of the imposition but limited traction of the law ought to raise questions about how we think about the historical nexus of media, cultural practices, and legal regimes. What is the relationship of popular discourse about intellectual property to our everyday practices, and our practices to the laws that ostensibly govern them? Is it law, social custom, or professional norms that set the parameters of our behavior as authors, readers, and teachers? Is it the economy of prestige, conditions of labor, ignorance, inertia, or the inverse relationship of scarcity to value that keeps scholars from exploiting digital media's radical potential for the global circulation of our ideas? In this essay, I survey recent book history scholarship on copyright and intellectual property with an eye to the difficulty of describing the relations between law and culture at any one point in time. For historical as well as theoretical reasons, I discuss scholarship on copyright and intellectual property alongside one another, without assimilating the first term to the second. [End Page 387] Whereas copyright emerged in the early eighteenth century as an instrument for regulating the print trades, intellectual property, an umbrella term encompassing copyright, patent law, trademarks, trade secrets, and industrial design, did not come into common use until the mid-twentieth century.1 Until then, copyright, patent, and trademark law were considered distinct and even incompatible bodies of law, with differing rationales, doctrines, procedures, and bureaucracies. While the generalization of copyright to cover nonprint objects and its subsumption into the larger category of intellectual property is a relatively recent historical phenomenon, eighteenth- and nineteenth-century writers gestured to some of the territory currently covered by intellectual property through the use of the term "literary property." Literary property could refer to rights claims and violations that fell outside the formal copyright system (such as plagiarism or trade courtesy); to rights that advocates hoped would ultimately be embraced by the statutes and defended by the courts (such as rights of translation or dramatic performance); or to the general and controversial concept of property in ideas. Opening up space between copyright and intellectual property can help us resist reading legal history as a prelude to or anticipation of contemporary norms, while also acknowledging the range of extralegal practices that have been used to stake out and defend property in printed texts under narrower definitions of copyright. As scholarship on copyright and intellectual property abundantly shows, the history of print has been powerfully shaped by the law and by what the law fails or refuses to protect as property. Copyright, Authors' Rights, and the History of the Book A brief overview of the history of copyright should provide cardinal points for newcomers to use in navigating this relatively new interdisciplinary field. Copyright law is not coincident with the introduction of printing, but rather emerges at the beginning of the eighteenth century as a tool for governments to use to limit the power of print monopolies. In early modern Europe, monarchs regulated the print trades through prepublication censorship and monopoly grants or "privileges" designed to align the technology of print with state interests. The first copyright law, the British Statute of Anne (1710), marks the beginning...

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