In recent decades, various scholars have questioned the proposition that copyright must necessarily be rooted entirely in a property paradigm, and have sought to show how, over the last century and a half or so, that paradigm has been applied increasingly strictly and its logic has been extended with ever greater force. An examination of eighteenth-century sources shows that the conception of copyright as a form of property was neither the only, nor even the dominant, paradigm in circulation at the time. Moreover, when studying these sources, we must ask who is using the language of property: judges, members of the bookselling industry and their lawyers, writers and their counsel, or some combination of these? Building on earlier work that traces some aspects of the property framework as it developed in eighteenth-century British jurisprudence, I show that writers were far cagier about the language of property than were their colleagues in the bookselling industry, sometimes adopting this language equivocally, sometimes repudiating it emphatically. Discovering that the word ‘property’ appears in eighteenth-century discussions of copyright mark the beginning, not the end, of an inquiry into its significance at this time.
Stern, Simon, Copyright As a Property Right? Authorial Perspectives in Eighteenth-Century England (February 14, 2018). 8 UC Irvine Law Review (2018).