If you grew up in Canada in roughly the same period that I did, your first experiences of cultural embarrassment were likely of the comparative sort. Canadians have a well-documented hatred of America (a difficulty for me, as my parents are Americans, and I was and remain infatuated with American popular culture), as well as an equally well-documented inferiority complex. Complicating matters, what happens in the United States often is restaged, some time later, in Canada.
This was true of USA For Africa’s “We Are The World” single and video in 1985, and its Canadian duplicate, “Tears Are Not Enough” (the supergroup, in the country of my birth, was called “The Northern Lights”). (There is a good deal to be said about the obscenity of colonialist sentimentality at work in these projects, which I will set aside here). I recall watching, as a 10-year old, the behind the scenes footage of the making of “Tears Are Not Enough.” We are inside a recording studio. An imperious David Foster and a cocksure Bryan Adams police the performances of the various singers. At a pivotal moment, Adams turns to Joni Mitchell and says: “Joni, I think you’re a bit flat.” Mitchell retorts: “Bryan, I think that’s called my style.”
All of which is a long way to say: what follows here continues in last week’s freewheeling mode of writing, under the aegis (if it is not too presumptuous) of Joni Mitchell’s retort. Today, we focus more doggedly on questions concerning the materiality of the book and other cultural commodities, and try, at least preliminarily, to crack the code underlying the metaphysics of intellectual property.
An intriguing piece of evidence unearthed by the literary historian Martha Woodmansee: a description of the object called the “book” in a German dictionary of political economy of 1753. Compared against present norms, this text’s conception of occupational hierarchy in the field of literature is rather startling:
Book: is either numerous sheets of white paper that have been stitched together in such a way that they can be fitted with writing; or, a highly useful and convenient instrument constructed of printed sheets variously bound in cardboard, paper, vellum, leather, etc. for presenting the truth to another in such a way that it can be conveniently read and recognized. Many people work on this ware before it is complete and becomes an actual book in this sense. The scholar and the writer, the papermaker, the type founder, the typesetter and the printer, the proofreader, the publisher, the bookbinder, sometimes even the gilder and the brassworker, etc. Thus many mouths are fed by this branch of manufacture.
Strikingly, the book here is defined as a material object, with almost no reference to the more spiritual or abstract qualities that we today associate with the literary text. Attention is paid to the circumstances of its construction (stitching, binding, gilding), and the writer’s communication of “truths” is treated as just another moment in a complex division of artisanal and handicraft labor.
This definition worked hand in glove with early copyright doctrines dedicated solely to the regulation of printing copies of protected texts. As the legal scholar Oren Bracha observes, eighteenth and nineteenth century copyright law largely ignored the category of texts called “derivative works”–– translations, abridgments, and adaptations––even though these “derivative works” were often the most commercially successful items on the aesthetic market.
Towards the end of the nineteenth century, however, lawyers began to mobilize three discursive strategies to advocate for a more muscular conceptualization of copyright. The first was a dramatic reversal of the logic at work in Woodmansee’s dictionary entry. Increasingly, the text would come to be seen as a special sort of intellectual object created by an author. In turn an older vision of copyright as the economic privilege to print receded. Relatedly, the text was transformed into “the work”: an abstract form that could take a variety of material iterations. Copyright, Bracha writes, “was presented as a general control of this elusive intellectual essence, irrespective of form.”
Second, the law came increasingly to distinguish between original and derivative works. Finally, lawyers and judges began to reframe the purpose of copyright as the protection of the market value of a given intellectual work.
Bracha identifies George Ticknor Curtis’s 1847 copyright treatise as an early announcement of these three themes.
Curtis defined the scope of copyright protection as follows: “[W]hile the public enjoys the right of reading the intellectual contents of a book, to the author belongs the exclusive right to take all the profits of publication which the book can, in any form, produce.”
By the 1840s, the “most material inquiry” in each case was to be “whether the author has sustained or is likely to sustain any injury by the publication of which he complains.”
The new hierarchy between original works and derivative uses bolstered this view. An abridgment, for example, was for Curtis the taking of “the property of the original author” that could not be justified by “any amount of learning, judgment or invention, shown in the act by him who thus appropriates the property of another.”
If an abridgment could be so characterized, then it must have been the case that at about this time, the literary work began to be treated as, in Bracha’s terms, a “mysterious intellectual essence that kept its identity despite ephemeral changes of form.”
In the words of Curtis, “The property of the original author embraces something more than the words in which his sentiments are conveyed. It includes the ideas and sentiments themselves, the plan of the work, and the mode of treating and exhibiting the subject.”
This mutually reinforcing relationship would serve as the basis of modern copyright law’s distinctive “hauntologies,” as well as its function as motor of economic developments. The urge to protect all market value in ever-expanding derivative markets informed the definition of the work as a permanent essence that could assume many forms. In turn, the notion of multiple forms considered to be instances of the same intellectual essence fueled the process of defining an increasing number of markets as derivative markets for the original work.
Woodmansee puts this evidence to use to drive home the newness of the contemporary understanding of “the author” as an “individual who is solely responsible and thus exclusively deserving of credit for the production of a unique, original work.”
In Germany, we only begin to find such “authors” towards the end of the eighteenth century. As this dictionary entry highlights, even then it must have struck many as a new and unfamiliar usage.
For Woodmansee, the German example is particularly illuminating, because continental law did not protect the labor of “authors” in the manner of English law. Thus, the German Romantic conception of authorship would develop along quite different lines than its English counterpart.
Both English and German legal traditions drew upon a shared intellectual heritage: Renaissance theories of artistic creativity. There, two concepts intermingled. On the one hand, the early modern author was “first and foremost a craftsman.” Woodmansee writes that this “author” was the “master of a body of rules, or techniques, preserved and handed down in rhetoric and poetics, for manipulating traditional materials in order to achieve the effects prescribed by the cultivated audience of the court to which he owed both his livelihood and social status.”
On the other hand, certain works transcended mere craftsmanship. To explain such phenomena, a new concept was introduced: the writer who was said to be “inspired by some muse, or even by God.” Contradictions necessarily ensued from these two warring descriptions of the author’s work: the ideal of literary craftsmanship and the cult of inspiration and originality.
These conceptual tensions contributed, to a significant degree, to preliminary adumbrations of cultural work. As the Romantic conception of authorship solidified, literary theorists minimized the salience of craftsmanship in favor of a new concentration on aesthetic inspiration. This redrawing of boundaries created, unintentionally or by default, a new category of participants in the production of cultural goods who were not “authors.” It would be many decades before this class of producers would be called cultural workers––in the meantime, the rise of Grub Street would lead to the popularization of the derogation “hacks”––but from the start something like the idea of cultural work was implied as the remainder left over after the redefinition of authorship.
A good deal of cultural production remained in the hands of those whose tangible labor left traces too obvious to allow for subsumption under the aegis of authorship.
Within the late eighteenth-century conception of authorship, authors were newly envisioned as having property rights in their intellectual creations. Copyright was thus reimagined as ownership—that is to say, total control—over an intangible object of property. For a long period, however, copyright doctrine was completely oblivious to this notion and remained confined to the limited traditional economic entitlement to print a text. During the second half of the nineteenth century, this aspect of copyright underwent a fundamental doctrinal and conceptual change. The scope of copyright protection expanded, new entitlements were created, and a novel concept of copyright as ownership of intellectual works appeared.
It was at this moment that authorial inspiration came to be linked with the modern articulation of creative “genius,” as against earlier and more egalitarian constructions. A crude, if effective, anatomical explanation went along with this new conception of the author: the author’s creation of the new occurred in the laboratory or boudoir of the brain. The “brain” typically functioned as an intentionally vague term meant to signify “not-hand” as much as it named any more biologically precise account of human creativity.
Daniel Defoe famously wrote, in 1670: “A Book is the Author’s Property, ’tis the Child of his Inventions, the Brat of his Brain; if he sells his Property, it then becomes the Right of the Purchaser; if not, ’tis as much his own, as his Wife and Children are his own. But behold in this Christian Nation, these Children of our Heads are seiz’d, captivated, spirited away, and carry’d into Captivity, and there is none to redeem them. (Review 2 Feb. 1710).”
The literary scholar Mark Rose notes:
We can note here the continuation of the patriarchal discourse of traditional society: the author is the master and owner of his wife and children as well as of the children of his inventions. But a sudden disruption of the idyll of patriarchal domesticity occurs as the narrative veers in the direction of romantic adventure, with biblical and religious overtones: “But behold in this Christian Nation, these Children of our Heads are seiz’d, captivated, spirited away, and carry’d into Captivity, and there is none to redeem them.”
Who are these un-Christian child stealers, Rose presses: “Turks, Moors, or perhaps American savages?” He continues:
In any event, the colorful description of the raid perhaps distracts the reader’s attention from the undesirable implications of the less violent form of alienation that has been glanced at. Defoe has just indicated that the author may sell his literary property, which then becomes the right of the purchaser. But if literary pirates are un-Christian child stealers, what are men who sell their children for profit? The slippage in the passage is located in the instability of the key word “own.” One’s children are one’s own, and thus may be regarded as property, but to assert as Jonathan Swift would ironically do in his Modest Proposal (1729) that they may be freely sold in the marketplace is scandalous. Defoe receives the paternity trope from the courtly culture of the Renaissance, but his usage evokes a distinctly middle-class patriarchal domesticity. Indeed, Defoe characteristically associates literary property with family, house, and home, as in the Essay on the Regulation of the Press when he speaks of the invasion of authors’ properties as “every jot as unjust as lying with their Wives, and breaking-up their Houses” (28). Literary property, Defoe says, “both is and ought to be the Due, not of the Author only, but of his Family and Children.” The literary pirate “burns his House, and beggars his Children” (Review 6 Dec. 1709). So too the London booksellers and printers had regularly couched their pleas and petitions to Parliament in pathetic domestic terms, complaining that they, their wives, and their children were being utterly ruined by piracy. Their copies were their legacies, dowries, and estates…
The Romantic conception of authorship, then, was a unique development within Western thought. It was the first fully fleshed-out picture of a productive (or reproductive) operation that took place entirely within the homunculus of the uniquely gifted human individual. “Inspiration” was reformulated to describe this immaterial labor or non-labor that nevertheless created “work was made peculiarly and distinctively the product and the property of the writer.”
As we follow these historical breadcrumbs, it is useful to keep the following passage in mind: a few paragraphs from the late historian of technology David F. Noble.
At the shop level the “labor problem” persisted. Management prerogatives clauses in union contracts, elaborate formal grievance procedures designed to remove the struggle from the shop floor as quickly as possible, human relations techniques and devices, and more traditional forms of intimidation and coercion were all used and, to some extent, all worked. But the problem of labor, rooted in the fundamental antagonistic relations of capitalist production, remained. However, two related developments offered new opportunities to management, in their struggle against “living labor. ” Both had long histories and dated back to the beginnings of modern manufacture and the Industrial Revolution.
The first, long ago described by Adam Smith, was the detailed division of labor and accompanying work simplification, which separated conception from execution and reduced the skill required for most production tasks. This approach to manufacturing made it possible for management to monopolize the “mental” activities, which were assigned to specialists and engineers, to employ relatively unskilled and cheap “hands,” and to specify carefully the routinized “manual” work they performed. The effect was to reduce substantially the margin of worker wages, discretion, judgment, and power.
The second development was mechanization and, later, automation, which built into machinery the muscle, the manual skills, and, ultimately, the self-adjusting and correcting “intelligence” of production itself. Automatic or “self-acting” machinery made it possible for management both to eliminate workers altogether and to control more directly the production process. The machinery, in turn, was used to discipline and pace the operators who attended it, thereby reducing the “labor problem” indirectly via the seeming requirements of the technology of production itself. These two trends––detailed division of labor and work simplification, on the one hand, and mechanization and automation, on the other––neatly complemented and reinforced each other.
The first made tasks simpler and thus easier to mechanize while,at the same time, expanding the ranks of unskilled production workers who increasingly became habituated to routine tasks, and thus ideally suited to operating automated equipment. The second, building more of the “intelligence” of production directly into the machinery, made it possible to reduce further the skill requirements and to rely more heavily upon an unskilled work force. The second trend presupposed and extended the first, carrying it to its logical conclusion. Men behaving like machines paved the way for machines without men. Management was thus able to reduce its historical dependence upon a skilled, and hence relatively autonomous work force. Moved not only by a quest for power and profit but also by an ideological faith in the inevitable efficiencies of reduced skill requirements, more concentrated management control, and the replacement of workers by machines, management tended to push these developments forward whenever possible.
Returning to the dictionary definition highlighted by Woodmansee: what must be stressed is that “the author,” in Germany in the 1750s, had not yet been reified to mean “creative genius possessed of moral and legal entitlements to his creations.”
Ironically, as Catherine Fisk notes, “the author” was called into being by the very eighteenth-century booksellers who would, in time, be displaced by publishers as books became capitalist commodities in a new author-based regime of commercial publication. Filling out this history Rose, Woodmansee, Peter Jaszi, and Joseph Loewenstein have located the birth of the modern idea of authorship in the crucible of eighteenth century literary property debates.
Building on this research, we seek to zero in on a narrower question—where, in these transformations, do we begin to see the advent of the modern idea of the cultural worker? We have observed, with Woodmansee, that “authorship” consolidated two strains of thought: the craftsmanship ideal and the cult of inspiration and originality. Almost immediately, the idea of authorship began to split along pre-established fault lines, engendering some profoundly ironic developments. Foremost among them was the return, in transfigured corporate capitalist form, of the logic of Woodmansee’s German dictionary of 1753.
In the American Gilded Age, it was as if the various participants in the bringing forth of a new text merged, along with managers and stockholders, into a composite “corporate author,” a legal fiction that overlapped substantially with its more famous relative, the “corporate person.”
In the late nineteenth century, “author” began to denote the capitalist corporation qua employer of the individual creative laborers who produce, collaboratively, cultural commodities. Since 1909, this construction of authorship has proceeded under the aegis of a legal doctrine entitled “work-for-hire.” As Fisk writes, this set in motion the default rules of contemporary copyright law, “when the creator is an employee, the default rule is employer ownership; when the creator is an independent contractor, the default rule is employee ownership.”
Fisk’s analysis suggests that the contradictions of “authorship” represented an obstacle or limit to the capitalist rationalization of the culture industries. For example, a Victorian Era English treatise on labor contracts, taking up the question of the right of the “master” to the “produce of the servant’s labor and inventions,” stipulates that the normal relations of master and servant are to be suspended in the case of literary production: “A person who employs and pays an author to write a drama or literary work, is not by virtue of the employment entitled to the exclusive right of representation or copyright, because the statutes vest such right in the author, and require the transfer of such a right to be in writing.”
Correlatively, the word “author” began, in the early twentieth century to function as a negative remainder or shadow: a mark of the legal identity given up by cultural workers as they put ink to contract and punched in each day at the corporate complex that C. Wright Mills called “Brains, Inc.”
If the law treated these cultural workers as having given up these authorial rights to their employers, however, it must also have reasoned that rank-and-filed creators possessed them in the first place. Indeed, in the metaphysical language of copyright, the figuration of the legal relation between employee and employer took the form of a “transfer” or “assignment” of rights. Thus, if the status of “author” was a marker of prestige, then that prestige was necessarily shared with cultural workers. This would, in turn, complicate the proletarianization of cultural work in historically meaningful ways.
 Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics. New York: Columbia University Press, 1994, 35.
 Bracha, 227.
 In other words, the idea of the “author” was a key achievement of the anti-materialist intellectual tradition, a project that, since the writings of Plotinus (and many much earlier sources, particularly within gnostic religious traditions) had identified the material with the fallen, the demonic, the dirty, and the ideal or mental with the saved, the holy, and the virtuous.
 Defoe, quoted in Mark Rose, Authors and Owners, 39.
 See Peter Jaszi and Martha Woodmansee, The Construction of Authorship: Textual Appropriation in Law and Literature (Durham: Duke University Press, 1994); Mario Biagioli, Peter Jaszi, and Martha Woodmansee, Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (Chicago: University of Chicago Press, 2011); Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994); Paul K. Saint-Amour, Modernism and Copyright (Oxford: Oxford University Press, 2011); ); Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass: Harvard University Press, 1993); Joseph Loewenstein, The Author’s Due: Printing and the Prehistory of Copyright. (Chicago: University of Chicago Press, 2002).
 C. Wright Mills, White Collar; The American Middle Classes. (New York: Oxford University Press, 1951).
 We focus, in particular, on Catherine Fisk, “Authors at Work: The Origins of the Work-for-Hire Doctrine,” Yale Journal of Law & the Humanities, Winter 2003; and Oren Bracha, Oren Bracha, “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” 118 Yale L.J. 186 (2008).
Note: updated at 4:53 PM PST, to make some minor name corrections, and remove a stray passage that belongs more properly in a separate essay.