copyright, occupation, colonization

In the Latin roots of occupation, two meanings apply. One has to do with holding a position – or employment – while the other has to do with capturing or holding a possession. For anyone who lived consciously through the 00s, occupation has an eerie pertinence, from the war in Iraq that colored the decade to the movement against Wall Street that ended it. Occupation was at the root of the moment – with all that it implies of violence sublimated by law.

Occupation, as it happens, colors one of the conceptual moments in the evolution of intellectual property law in the 18th century – laws that have grown ever more powerful in the great global fuckfest of capital.  For in trying to understand and incorporate intellectual property into the general law on property, occupation was considered, for a while, as a touchstone that would help transform the author or machinist’s claim to a monopoly privilege into an affair dignified by law. There was a moment in the 18th century in which mental products could be considered to be property to the extent that they were occupied by their creator: 

As  Blackstone wrote in his Commentaries, title to property could arise by Descent, Purchase, Escheat, Occupancy, Prescription, Forfeiture and Alienation.38 Echoing the Institutes of Justinian, it was also agreed that the primary way in which a person could acquire title to objects res nullius ( things which did not have or had never had an owner) was via `occupatio' or occupancy; that is, simply by taking possession or occupying them.39 Given this understanding of property, it is unsurprising
that the question of the way in which title to literary property could be acquired, if at all, initially turned on the issue of whether the Roman law doctrine of occupancy, which was said to underlie the foundation of title to property, could be applied to the production of books. (Sherman and Bentley, 21)

This moment in the codification of the copyright makes one dream a little. It attaches the original colonist’s claim of right to the oldest notion of literary creation, which is in-spiration – being possessed, or occupied, by a spirit. The term is all the stranger the more I turn it around in my mind – for just as the colonist “discovers” new land, so too must the writer or artist be considered not the creator so much as the discoverer of something that already exists – even if that existence is on level of Plato’s heaven, where the ideas exist by themselves alone. The colonist and the author squat, and by squatting have the right to trade.

To occupy a sentence, a poem, a story, leads logically and legally back to the sense, strongly testified to at various times by poets, that the verbal object as they put it on paper is a copy of something that isn’t on the paper, something prefigured. It is as though, in this moment of the history of intellectual property, we are taking the written as it seems to have been felt at the very beginning – as a magical entity – in order to give it the form of a rational commodity, one that can join the circuit of other commodities.

According to Sherman and Bentley, the uncanniness of the claim was recognized by the pamphleteers of the 18th century themselves, which is why occupancy eventually lost out as the foundation of intellectual property. But the argument is still interesting, with all its connotations in the world as the 18th century English establishment saw it – with its colonies, its slaves, its guilds, its incipient industrialization and mass wage labor:

In particular, the proponents of literary property suggested that `occupancy in the proper sense of the word, includes the principal source of literary property. The title by occupancy commences by the taking possession of a vacant subject; and the labour employed in the cultivation of it, confirms the title. Literary property falls precisely within this idea of occupancy'.43 While Francis Hargrave, barrister for Thomas Becket in the early stages of his litigation against Donaldson and author of the Influential  Argument in Defence of Literary Property, went so far as to assert that the author's title was stronger than simple occupancy would suggest, in the face of the incorporeal nature of mental labour these arguments were difficult to sustain. In particular, they offered no acceptable response to the retort: how could you occupy something which had no physical existence?

The lack of physical existence of the idea of the book, poem, sentence is, indeed, troubling in an economy of things, inserting a moment of an eventually intolerable ontological ambiguity. And thus, the argument shifted:

“The second response elicited by the Stationers and their supporters to the argument that ideas of the mind could not be seen as a species of property because they could not be occupied was to attempt to shift the basis of the argument. They did this by suggesting that occupancy was
not the only means by which title to property could be acquired.”

This shift was not one that entirely embraced novelty as a category coming under property; rather, the argument shifted to the Lockian one in which mental labor was the same kind of property as physical labor – we have, as it were, property in ourselves beyond our occupation of ourselves. And yet this property has certain peculiar distinctions: we can’t, under the Lockian reading, sell ourselves; we can only sell our labor. Our property also owns us.

There are a number of problems with applying these distinctions to intellectual property. While abstract physical labor is a property that can be sold through wages, abstract mental labor is not a matter of the time clock, but instead a matter of the product of mental labor. No worker on the assembly line claims his property in the car, but the author does claim his property in the book. In this sense, the laws of intellectual property go back to certain basic binaries in the culture of early modern capitalism: binaries that are overdetermined by logic and magic, the slur of whose infinite unraveling is traced in the law books and court cases. Invention and discovery, inspiration and occupation, possession and alienation,  these fierce abstractions come down to earth like gods in disguise and change the course of people’s lives. They can be met with at any crossroads.

And indeed, the law is a product of  the crossroads as much any other instituted and armed norm. The turn to a Lockian solution to the problem of commodifying inspiration was consistent with another and, I’d claim, related problem: the problem of imperialism. There is good reason that the metaphor of the discoverer of a new land was so often applied to the  author or projector of a new invention or entertainment. The problem facing the colonizers  in America, which was a problem that was never quite solved, even by the revolution, came down to the idea of a claim based on discovery. All titles tend towards this root act; and  yet, inconveniently, the discovered land always turned out to be populated already. The naturals were in the corner of the discoverer’s eye even as he planted the flag. The Lockian solution was the post facto eradication of them, which made for a blank slate landscape and a retrospectively designed history that transcended the outlier facts.  Similarly, the naturals are always there to bother author and inventor – there’s an ineradicable intertextuality within text or machine that haunts the originality justifying the claim to property.