John Sutherland

  • Copyright: Intellectual Property in the Information Age by Edward Ploman and L. Clark Hamilton
    Routledge, 248 pp, £12.50, September 1980, ISBN 0 7100 0539 3

In his essay on Nikolai Leskov, Walter Benjamin observes, almost in passing, that the novel inevitably brings about the end or storytelling. Like many of Benjamin’s paradoxes, this insight is very unsettling to the received idea – oh dear no, the novel doesn’t tell a story after all. Benjamin’s reasoning runs thus: the story (the only current example would be the dirty joke, I imagine) has no identifiable single author and is transmitted face to face. It rises from the common anonymous stock of oral recitation and intimate social exchanges. Unlike the novel, it is not immutably fixed in form: nor is it a negotiable commodity. Nor, to add to Benjamin’s distinction, does the story go round with a minatory © attached to it as does every novel.

The law of literary copyright is fertile in paradoxes, which Marxists like Benjamin would refer back to the larger contradictions of capitalism. ‘Intellectual property’, as it is awkwardly but necessarily called, is legally formulated by a compromise of materialist and idealist presumptions. A literary work is initially made by being written or otherwise recorded. In the interim between composition and publication (a very tricky passage) the work has only a latent protection, but one which will wait, with infinite patience, until publication, when the various copyright clocks start from zero. Copyright inheres, not in the work’s ideas or techniques, but in the precise form of words which make it up. While it is protected, the copyright work is conceived of platonically as an incorporeal archetype of which any book is only the transitory vehicle. Uniquely in the annals of ownership, intellectual property has a time clause attached to it: fifty years after the author’s death (in Britain and, since 1976, America) the work enters the public domain and ceases to be private property any more. The law is exact about chronology, but definition of the copyright object is a notorious quicksand. Although ‘literary works’ are the primary category, they are not required to have literary value: Lawrence’s handwritten laundry list and the holograph Women in Love are equal before the law. Nor, to be literal, do literary works have to be written or even readable. Key pieces of legislation, such as the Berne Convention, do not even venture to define what ‘work’ may be. ‘Literary work’ in copyright law is thus a semantic convenience of the same order as ‘John Doe’: what it is all depends.

The legal fiction that the literary work has an abstract, single existence which accompanies but mysteriously transcends any book fits in nicely with the academic theory of ‘text’. It is no accident that the century which gave birth to the first copyright law of 1709 also saw the rise of textual scholarship. Lawyer and editor build their systems around the same noumenon. The scholar, however, is the more ambitious of the two. Since 1967, when the MLA hailed its ‘new era’ of CEAA approved texts, a prodigious amount of American academic energy has been invested in the ‘establishment’ or realisation of the elusively ideal. The Laputan excesses which have resulted (appendices of hyphen lists, for instance) were satirised by Edmund Wilson. Within academic circles there have been ferocious, quasi-theological disputes as to whether copy-text be first or last published version in the author’s lifetime, whether it should follow old or new spelling, and what should be done with substantive variants.

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