Genius against copyright: revisiting Fichte's 'Proof of the Illegality of Reprinting'.

• Author: Biagioli, Mario
• Position: Symposium: Creativity and the Law

This essay is dedicated to the memory of Keith Aoki, dear friend and colleague.

INTRODUCTION

The "romantic author" or "romantic genius" has been central to the history and critique of copyright for a few decades now. (1) A figure of radical individuality, genius was mobilized between the end of the eighteenth century and the middle of the nineteenth century to conceptualize a new kind of property authors could claim in their texts and other works deemed expressive. Drawing a sharp conceptual separation between the content of a work and the unique and therefore original form adopted by the author to express such content, the romantic genius is seen as the direct ancestor to the foundational notion of "personal expression" in modern copyright. (2)

Genius functioned as a remarkably effective legal fiction rather than an accurate description of the process of literary or artistic production. Some authors may describe or experience their work as coming together unexpectedly, in a creative flash, by divine inspiration, or in a dream, but that does not erase the fact of the inevitable borrowings, collaborations, and extensive labor that goes into any form of cultural production. I do not wish, however, to expose the mythical nature of the romantic author and the way it denies visibility to the many social dimensions of creativity by casting it an instantaneous and seemingly natural process. That critique has been articulated well and often already.

My point is quite different: whether or not genius has functioned well in the past as a foundational myth of literary property, the kind of creativity attributed to that figure can in fact easily undermine the very notion of property it is deemed to have established. More precisely, it is not that some elements of the figure of the romantic genius support the notion of intellectual property while others play against it, but rather that the very same dimensions that make genius into such a powerful tool for establishing copyright are also capable of undermining it. Genius is copyright's pharmakon--simultaneously a cure and a poison. (3) This paradox has been hiding in plain sight for a couple of centuries, nicely spelled out in the Romantic text frequently credited for having established the modern idea/expression dichotomy: Johann Gottlieb Fichte's 1793, Proof of the Illegality of Reprinting. (4)

1. TRAJECTORIES AND TIMELINES

   It was claimed in eighteenth-century British debates over the existence of literary property that works should be initially owned by their authors because they embodied some imprint of the author's creative agency--a pattern that made them distinguishable from all others. A shared strategy was to distinguish a work's "form," "style," and "sentiment" from its content so as to argue that a book or an engraving was more than a material paper object. The patterns in which its letters, characters, or lines were arranged on the printed surface actually conveyed something more ineffable than ideas, things, facts, and knowledge. (5) That formal stylistic quality (much easier to grasp as a pattern than to spell with any clarity) functioned simultaneously as the mark of authorial agency and as the boundary mark of the author's work and property--however hazy that boundary may actually turn out to be. As Francis Hargrave put it in 1774:

   Every man has a mode of combining and expressing his ideas peculiar to himself. The same doctrines, the same opinions, never come from two persons, or even from the same person at different times, cloathed wholly in the same language. A strong resemblance of stile, of sentiment, of plan and disposition, will be frequently found; but there is such an infinite variety in the modes of thinking and writing as well in the extent and connection of ideas, as in the use and arrangement of words, that a literary work really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity; and to assert the contrary with respect to either, would be justly deemed equally opposite to reason and universal experience. (6) The connection between authorial originality or genius and copyright bloomed a few years later among German Romantics, triggered not by Hargrave's text but by a slightly older English work of literary criticism: Edward Young's 1759 Conjectures on Original Composition. (7) Young's text had little noticeable impact on British copyright debates but received extraordinary attention in Germany, where its celebration of natural genius and critique of literature stemming from the imitation of the classics resonated with the Romantics' emphasis on the creative individual self and the organic (rather than mechanical or rule-based) nature of both knowledge and artistic production. (8)

   In 1791, Fichte refashioned Young's and his fellow Romantics' notion of genius to make a case for an indelible trace of the author's creativity in his/her work--a trace he identified with the unique personal expression the author was bound to present ideas, images, and content: "Each individual has his own thought processes, his own way of forming concepts and connecting them." (9) It was a response to what he saw as the unacceptable but widespread practice of reprinting in the German lands. (10) Reprinting is commonly identified with piracy, but in eighteenth-century Germany it was an effectively legal practice rooted in the fragmentation of political power over many different independent towns and territories--about three hundred of them. Because the scope of printing privileges was local and typically limited to small geographical jurisdictions, printers who operated in a nearby town under a different privilege-granting authority could legally print a book protected by a privilege issued by a different town, though one that may be just a few miles away. (11)

   Fichte condemned reprinting as a practice, but objected even more forcefully to seeing such practice conceptualized and judged through the lens of the privilege system. (12) Printing privileges were treated and deployed as tools for economic policy, and their legal status was that of grants, that is, exceptions to civil or natural laws. (13) Opposing that approach, Fichte sought a right-based argument for the existence of an author's property in the work so as to shift discussions of reprinting from the realm of utility and damages to that of justice:

   [I]f we can simply prove the existence of such a perpetual ownership of the text by its author, then ... we will not need to respond to ... demonstration of the utility of reprinting, since this will no longer be relevant; for whatever is plainly illegal ought never to occur no matter how useful it may be. (14) His Proof of the Illegality of Reprinting did precisely that. Key elements of Fichte's text were either adopted or mirrored in the Prussian Statute Book of 1794. While not recognizing literary property as a concept, that law nevertheless stated the author's life-long right to control the publication of his or her work without the need to file for a privilege. (15) Fichte's ideas were subsequently referenced in the articulation of the first Prussian Copyright Act of 1837. (16) British Romantics like Coleridge and Wordsworth then introduced (or reimported) genius-based arguments into British nineteenth-century copyright debates. (17) The idea/expression dichotomy has since become part of US law, the 1991 European software directive, the 1994 TRIPS, and the 1996 WIPO Copyright Treaty. (18)

2. AN ORIGINAL PATH TO ORIGINALITY

   Compared to previous (mostly British) arguments for the existence of literary property, Fichte's demonstration of why reprinting violated the "perpetual ownership of the text by its author" (19) stands out for not starting with an image of what the object of the "perpetual ownership of the text by its author" was. In Britain, for instance, some copyright proponents tried to legitimize the emergent and hard-to-conceptualize notion of literary property by analogizing it to landed property, or by casting the author's mind as a field in which fruit and flowers grew as in a farm or garden. Others tried to integrate literary property within Lockean property theory by expanding the notion of labor to include the "mental labor"--the sweat of the brain--that authors expended to produce their works. Fichte, instead, offered neither metaphorical bridges between old tangible property and new intangible property, nor did he follow the instrumental logic of the U.S. Constitution that, just a few years earlier, had justified the granting to "Authors and Inventors the exclusive Right to their respective Writings and Discoveries" as a way to "promote the Progress of Science and useful Arts." (20)

   He opened, instead, with an axiom and a question: "We are the rightful owners of a thing the appropriation of which by another is physically impossible. This is a proposition that is immediately self-evident and needs no further proof. And now to the question: Is there anything of this sort in a book?" (21) What mattered to him was that such property be inalienable, not whether it was tangible or intangible, nor how it might have been produced. His argument was structured like a test: if there is something in a book that could not be in any way alienated from its owner, then that something must qualify as property--perpetual property--no matter what kind of thing it may turn out to be. Fichte's nonessentialist stance was as elegant as it was astute. The intricate and never-ending British eighteenth-century querelles over the definition of literary property demonstrated all too well how intricate and contestable those arguments could be, even after the 1710 Statute of Anne (22) had legitimized the notion of authors' rights. (23) He seems to allude to this predicament when he writes:

   The difficulty of demonstrating that an author has perpetual property...