Tuesday, November 27, 2007

The Revisionism of Originality and Infringement

There is a tendency to think of copyright as having always been what it is now, at least in fundamentals such as originality and infringement. The fundamentals have not always been the same, and the evolving nature of these core concepts goes a very long way toward dispelling the foundational myth of Romantic authorship and the incentive rationale. A recent book, “Plagiarism and Literary Property in the Romantic Period,” by Tilar Mazzeo, a professor of English at Colby College is an excellent start. Professor Mazzeo covers some of the same ground well ploughed by others, especially the accusations brought against Coleridge in 1834 by Thomas DeQuincey in the Tait’s Magazine, as well as Wordsworth’s screeds against others and his own rather dubious practices. Lord Byron comes in for review too. One scholar who went down this path before was Thomas Mallon in his 1989 book, “Stolen Words: Forays into the Origins and ravages of Plagiarism,” which I read when it was published. Mallon focused though on the charges made against Laurence Sterne’s Tristam Shandy. A more recent look is that of Paul St. Amour in his 2003 “Copywrights: Intellectual Property and the Literary Imagination,” which I found too loaded down with jargon (“packing and unpacking” meanings, etc.), beginning with the too precious conceit of the word “copywright,” described as a “’portmanteau’” word – one into which multiple meanings have been ‘packed up.’” I didn’t find one much less many to unpack, and almost packed up the book and sent it back after reading this, the first sentence in the book. But I did persevere for an hour with some happy results. If one overlooks the unfortunate writing, there are some good factual nuggets.

Professor Mazzeo’s account is far different from the packing and unpacking in Professor St. Amour’s book and the sometimes tedious moralizing in Mallon’s book: instead, than looking back at the accusations from our sense of propriety, he makes a sober detailed examination of how contemporaries viewed both originality, infringement, and plagiarism, using the analytical approach used at the time to these questions. That approach brings some rather surprising discoveries. DeQuincey, for example, nicely laid out three circumstances in which a plagiarism should not be found: “(1) when the author improved on the work of the original; (2) when the second author has borrowed from a work so well that known that a well-read reader may be expected to credit the original source; (3) when the borrowing had been unconscious.” (page 19). “Unconscious” does not mean the type that got George Harrison in hot water with My Sweet Lord and He’s So Fine, but rather,, a practice as a matter of habit (rather like DeQuincey’s opium habit, as DeQuincey himself pointed out in detailing his accusations against Coleridge). Instead, habit was an odd mixture of an erasure from consciousness yet still tinged with a mark of the erasure. As Professor Mazzeo put it, “Erased from consciousness, habit is not unknown or inaccessible to consciousness but is instead a ruin, a memorial, a trace, a mark of erasure, still visible but serving only to the point back to the thing which it no longer is.”

I confess this made no sense to me, but that’s an important point: originality infringement, and plagiarism are intensely historical and contextual. None of the three circumstances noted by DeQuincey as not being the slightest problematic would pass muster today. Those who invoke the gods of Romanticism as a justification for copyright today had better find other deities to worship.


Anonymous said...

"The fundamentals have not always been the same, and the evolving nature of these core concepts goes a very long way toward dispelling the foundational myth of Romantic authorship and the incentive rationale."

Mr. Patry - I was wondering if you'd be willing to expound on this sentence, particularly at it relates to the incentive theory. Do you reject the argument, most notably posited by Larry Lessig, that the copyright clause establishes promoting progress in the useful arts and sciences as an antecedent to any IP laws? Or, am I reading too far into this sentence?

I am relatively new to your blog, so please excuse me if you've previously written at length on the issue.

William Patry said...

Thanks, Anon, I go further than Larry at least argued in Eldred: my position is that the clause is a substantive limitation on Congress's power: not per work, but systematically

Anonymous said...

Why not boil down copyright as follows? Copyright statutes are merely government regulations that create a secondary market cash flow that can be freely traded (without regard to originality, innovations, human rights, etc.) Artists don't need commercial incentives to produce art, as creativity is a human compulsion. But if they benefit from discounted future cash flows permitted by copyright laws, then all the better.