In her 2002 study of nineteenth-century American print culture, American Literature and the Culture of Reprinting, 1834-1853, Meredith McGill complicates the relationship between copyright and issues of authorship. For example, she explains that, “According to a republican theory of authorship, exclusive ownership of texts in the public sphere can only be secured by a writing that is pure publicity” (63). Only publicly authored documents (i.e., statutory laws) have the authority to regulate the exclusive ownership of texts by individual authors because only such publicly authored documents bear the authority of an indisputable signature—that of the public itself. In other words, the republican theory of authorship that dominated nineteenth-century literary culture denied individual authors access to a common-law and perpetual copyright, requiring them instead to submit to the regulatory power of the public as embodied in statutory law. This approach drives a wedge between private and public interests, postulating a theory of authorship which subordinates the individual author’s rights to the interest of the public, which is itself presented as an authorial presence—the author of the legislation governing authorship.
This immensely complicated formulation comes at the conclusion of McGill’s summary of the Wheaton v. Peters (1834) Supreme Court copyright case. The decision in this case established “going-into-print as the moment when individual rights give way to the demands of the social” and characterizes “the private ownership of a printed text as the temporary alienation of public property.” The Marshall Court’s decision to limit authors’ ability to own, and therefore control, the rights to their published writings raises some interesting questions about the materiality of the written word, the processes by which information is disseminated, and the nature of intellectual property rights in an age of mass media. McGill hints at these problems in her description of the republican theory of authorship and its implied split between private authorship for material gain and public authorship designed, produced, and distributed on behalf of the collective public good (45-46). By approaching these issues through an examination of the Wheaton v. Peters case, McGill shifts the emphasis on authorial control away from individual intellectual property rights and toward the role an intellectual property plays in advancing the common interest.
At the heart of the Wheaton v. Peters case is an argument over the dissemination of textual materiality. But issues concerning the materiality of written texts are complex and difficult to navigate, for texts are written/printed/disseminated in myriad ways. McGill highlights this complexity by focusing on the court’s distinction between handwritten manuscripts and published texts. She notes that the court’s final decision “establishes a distinction at law between handwriting and print, identifying the former as personal, and the latter as public property” (65). McGill, to a limited extent at least, sympathizes with this private/public split between unpublished manuscript and published text. Her sympathy emerges from her understanding that nineteenth-century print culture was situated within an emerging, widely dispersed industrial publishing industry whose size and multi-faceted nature subjected authorship to the pressures of increasingly diverse stakeholders in the production and dissemination of published texts. In her criticism of Wheaton’s argument regarding the infallible identification of books with their authors, McGill writes:
“The watch, the table, the guinea, and the book have been compared as articles of personal property, not in relation to the history of their production. And, while it is possible that the watch and the table could be owned by those who made them, the addition of the guinea to the list would suggest that what is at issue here is the degree to which these objects can be marked by the identity of those who possess them, regardless of their manufacture. Within the narrative of detection set up by this passage, the restoration of the book to its rightful owner circumvents the entire system of exchange, making the author the destination as well as the origin of the text.” (54)
By focusing on Wheaton’s complete circumvention of the exchange system that transforms an individual manuscript into a multiplicity of books for sale on the open market, McGill not only recognizes a collapse between producer and consumer, she also elevates the process by which books are manufactured to a position of importance that displaces the central role of the individual writer as sole producer of the work. McGill drives her point home by relying on a similar sentiment expressed by the bibliographic scholar Roger Stoddard: “Whatever they may do, authors do not write books. Books are not written at all. They are manufactured by scribes and other artisans, by mechanics and other engineers, and by printing presses and other machines” (4). According to this formulation of authorship, a book does not bear a single, dominant signature—that of the writer—but is in fact marked by a multiplicity of signatures that directly connect it to a larger system of economic exchange.
Once we view a book as a market-oriented material commodity, perpetual copyright becomes increasingly difficult to justify. McGill demonstrates this difficulty by illustrating what she considers to be Wheaton’s “utterly inappropriate” series of analogies that liken the publication and sale of books to the leasing of land (56). By drawing this comparison, Wheaton suggests that a book’s property value does not permanently transfer to the reader at the point of purchase, but must revert to the author by virtue of his or her natural right to the material contained in the text. McGill rejects Wheaton’s tendency to “think in term of inheritance [rather] than in production, leasing instead of sale, and in the reclamation of an object rather than in profit or exchange” (56). Her disagreement with Wheaton’s argument is that he simultaneously presents “the book as a commodity (an acknowledgment made manifest in his emphasis on the materiality of text) and his commitment to a Lockean theory of property, a theory that sees property not as an alienable thing but as a relation of enclosure” (57). One reason these two views are incompatible is that the Lockean theory of property is based on individual labor, or what McGill calls “an act of appropriation which is necessary for [an individual’s] subsistence” (57). Therefore, according to the understanding of common law property rights presented by Elijah Paine, one of Wheaton’s lawyers, “the circumstances of the private is drawn by the author’s labor, the moral ground for appropriation is bodily self-perpetuation, and the moral limit to acquisition is suggested by the principle of self-sufficiency.” The first part of this definition shows how the book as mass-produced material commodity does not fit within the Lockean theory of personal property. The process by which the book is transformed from manuscript to published text involves the labor of multiple individuals. The production process that transforms a manuscript into a book marks the end of the author’s personal right and the beginning of the public’s collective right. Again: books are not written, they are manufactured.
What exactly occurs in terms of ownership of a text in the production and dissemination process is central to McGill’s account of nineteenth-century print culture. As the above examples demonstrate, there is a discrepancy between the text as a commodity and the text as natural property in the Lockean sense. In illustrating Wheaton’s attempt to navigate this discrepancy, McGill presents an image of the text as a free-floating commodity exchanged in defiance of the traditional rules that govern the market. As an example of the curious relationship of the book to the economic system in which it circulates, McGill quotes Daniel Webster, one of Wheaton’s lawyers, as saying, “none can doubt a man’s book is his book—is his property” (55). When we consider the discrepancy between the book as material commodity and a material representation of its author’s individuality, Webster’s statement falls apart, an observation that is not lost on McGill. She perceptively notes, “What the force of [Webster’s] tautology would override is the fact of the market, the necessary discrepancy between the man who owns the book as author, and the man who owns the book as reader” (55). Industrial publication distances the author from the text, interjecting an advanced process of production and dissemination that mechanically marks the text, thus distinguishing it from the author’s individual identity. Yet despite our recognition that authors are not the sole producers of the texts we regularly handle, we persist in assigning sole ownership of a text to its author at the same time that we claim individual ownership of the books in our personal libraries. Part of McGill’s project is to highlight this contradiction. She draws on the process by which books are manufactured and distributed to challenge our notion of authorship, and she succeeds in bringing the material discrepancy demonstrated by Wheaton v. Peters to the fore of our attention when considering the history of copyright law in the United States.
Yet despite McGill’s argument against Wheaton’s inconsistencies and her wonderfully complex analysis of nineteenth-century authorship, she limits her discussion of authorship to those writers who worked within the industrial publishing industry for the purpose of generating monetary profit. By limiting her analysis of books as commodities that circulate in an economic, capitalist system of exchange, McGill ignores the types of amateur publications that scholars such as Ann Fabian rightly bring to the surface of nineteenth-century print culture. When combined with well-known examples of self-published books such as Walt Whitman’s Leaves of Grass, Fabian’s focus on an authorial/editorial practice that functions outside—or on the margins of—the professional publishing industry exposes what I see as a weakness in McGill’s argument. If copyright should be limited, in part at least, because of the process by which the material commodity is produced (i.e., through the operation of an industry that marks the text with the labor of multiple individuals rather than the single labor of a lone author), the alternative process by which amateur authors, editors, and publishers produce their work begs a reconsideration of McGill’s view of the book as a commodity produced and disseminated through a professional/industrial process of exchange. One aspect of amateur authorship that distinguishes it from the type of authorship McGill discusses is that the amateur author often doubles as editor, printer, and distributor—a virtual collapse of Robert Darnton’s “communications circuit.” The term “self-published” excludes the industrial publishing apparatus that McGill introduces as a key challenge to an author’s claim of ownership over his or her text. An author like Whitman performed much of the labor that brought Leaves of Grass into being as a material commodity. In Whitman’s case, the Lockean theory that the circumference of private property is determined by the extent of the author’s labor would seem to provide him with the theoretical basis for an argument in favor of perpetual copyright.
No matter the physical labor Whitman performed in the production of Leaves of Grass, the republican theory of authorship is driven by the privileging of reader’s interests over those of individual authors. In a particularly striking example of such privilege, McGill quotes an argument Charles Ingersoll, one of Richard Peters’s lawyers, makes before the court in defense of Peters’s right to reprint Wheaton’s collection of reports:
“The notions of personal property of the common law, which is founded on natural law, depend materially on possession. Throw it out of public use, and how can you limit or define that use? How can you attach possession to it at all, except of a subtle or imaginative character? If you may read, you may print. The possession is not more absolute and entire in the one case than the other.” (61)
This, of course, returns us to the problem of who possesses a text once it is sold on the open market. According to Ingersoll’s statement, to read is to possess, and to hold the right to reproduce a text in the act of reading is analogous to holding the right to reproduce a text in print. As McGill notes in her comments on Ingersoll’s argument, “This proposition constitutes an astonishing elision of the sphere of production from the opposite direction than we have come to expect. Whereas Webster and Paine imagine an unmediated relation between author and printed text, casting the author as sole producer, Ingersoll imagines an unmediated relation between reader and text” (61-62). Not only does this unmediated relation between reader and text have radical implications for copyright law, it also has radical implications for the nature of authorship. By shifting the emphasis from authorial control to the communal control of the reading public, the republican theory of authorship devalues the authority of the individual author in favor of the public interest. It is only when a text meets its rightful destination—the reading public—that authorship, as defined by material production and dissemination, comes into being.