The Rise of Intellectual Property, 700 B.C.--A.D. 2000: An Idea in the Balance - part 2

The tension within Enlightenment epistemology left those policymakers concerned with the book trade on the horns of a philosophical dilemma. Did knowledge inhere in the world -- or in the mind? To what extent were ideas discovered -- and to what extent were they invented?

Condorcet argued that knowledge was objective and thus fundamentally social in character, belonging to all. Diderot, along with Young, Lessing, and Fichte, viewed ideas as subjective, originating in the individual mind and thus constituting the most inviolable form of private property.

Two strains of legal interpretation developed from these competing philosophical doctrines. Those legal thinkers who sided with the objectivist position of Condorcet elaborated the utilitarian doctrine that there was no natural property in ideas, and that granting exclusive legal rights to individuals for unique forms of their expression could only be justified because such an arrangement was the best legal mechanism for encouraging the production and transmission of new ideas, a manifest public good. Conversely, those who sided with Locke, Young, Diderot, Fichte, and the subjectivist camp argued that there was a natural right to perpetual property in ideas and that legal recognition of that right was simply the confirmation in statute of a universal natural right. The utilitarian position thus understood the public interest as the highest aim of the law, while natural-rights proponents argued that the sanctity of the individual creator should be the guiding principle of any legislator.

Over the course of the eighteenth century, every European country witnessed a series of legal battles over which of these principles would prevail. Vested interests on both sides of the debate vied to capture the legislative advantage. The English were the first to take up the question after the lapsing of the Licensing Act in 1695, which had regulated the book trade and censorship. Intending to end prepublication censorship by suppressing the obligation to submit to prior licensing before publication, Parliament inadvertently also called the whole system of privileges into question. If a work were not registered prior to publication, no mechanism existed to protect literary privileges against pirate editions. The Stationers' Company clamored for recognition of their traditional privileges as perpetual property rights, while pirate publishers insisted that the lapsing of the act meant that all previously published works were now free for all to reprint.

Parliament finally filled the legal vacuum in 1710, when the so-called Statute of Anne definitively separated the question of censorship from that of literary property. The statute ruled that authors, and those who had purchased a manuscript from an author, would have an exclusive right to publish the work for fourteen years (the term that had previously been established for patents on mechanical inventions). This right could be renewed for an additional fourteen years. But after this period (of fourteen or twenty-eight years), the work became part of the public domain, and anyone was free to publish it. As a result, all of the monopolies held by the Stationers' Company on classical texts were abolished. In effect, the Statute of Anne -- its full title, appropriately enough, was "A Bill for the Encouragement of Learning and for Securing the Property of Copies of Books to the Rightful Owners Thereof" -- represented an uneasy compromise between the position of the Stationers' Company and the advocates of author s natural rights on one side and the position of the pirate publishers and advocates of "the public interest" on the other.

Needless to say, neither side was entirely satisfied with this compromise. The contradictory philosophical assumptions it codified left plenty of room for subsequent court challenges. A series of cases that pitted London publishers against foreign rivals -- Tonson v. Collins in 1760, and Millar v. Taylor in 1769 -- led briefly to a recognition of perpetual property rights in the unique expression of an idea. But Donaldson v. Becket in 1774 reversed this decision, and definitively established as British law the compromise concept of a "limited property right" in the unique expression of an idea.

The Donaldson v. Becket decision was crucial in two respects. First, despite the dissenting voice of eighteenth-century England's most distinguished jurist, William Blackstone, it established the "encouragement of learning" as the highest aim of the laws regulating books. Second, even though copyright was acknowledged to be a natural right rooted in common law, the Donaldson v. Becket decision held that copyright in practice hinged on government legislation. In England, the utilitarian doctrine of a higher public good trumped the idea of intellectual property rooted in natural right. (18)

In early America, both natural rights and utilitarian doctrines were debated within the British colonies, and colonies differed as to which theory formed the basis of their laws. (19) The Statute of Anne, as ratified by the Donaldson v. Becket decision, became the basis for the relevant clause in the Federal Constitution of 1787: "Congress shall have the power...to promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This article in turn became the basis of the United States Copyright Statute of May 31, 1790. The author or inventor was acknowledged as an individual with special claims upon his own ideas -- but the public good dictated that those claims be limited. In America, as in England, there thus remained a persistent tension between a natural-rights justification for perpetual copyright claims, rooted in common law, and statutory limits that preempted, but did not abolish, those anterior rights.

A similar tension in French legal thinking provoked a parallel set of court battles. At the beginning of the eighteenth century, the French crown, hoping to strike a compromise between Parisian publishers and their provincial competitors, had declared that privileges were not a form of perpetual property, as the Parisian publishers claimed, but rather "a grace founded injustice"; as a result, privileges could be limited, renewed, or even revoked, at the king's will. This ruling permitted the crown officers administering the book trade considerable latitude in redistributing privileges. The ruling did little, however, to undermine the monopolies of the Paris Book Guild, or to forestall a growing flood of books illegally produced by provincial and foreign printers.

In 1777, the French crown, confronted with mounting criticism, was forced to revise the system of privileges. While still refusing to recognize the concept of "literary property," the king for the first time granted authors their own category of privileges (Privileges d'auteur). These new privileges were to be perpetual and inheritable, like any other form of personal property. However, once an author sold a manuscript to a publisher, the publisher's claim would be limited to ten years, with the possibility of a single renewal. This meant that the publisher's privileges were to be restricted at the same time as unlimited privileges were extended to authors. The Paris Book Guild, predictably enraged, refused to acknowledge the new law and essentially went on strike against crown officials until the Revolution in 1789.

The Revolution changed everything. "Freedom of the press" was declared and literary privileges abrogated. The royal administration of the book trade was abolished, and so were the Parisian book guilds. Authors were now widely celebrated not as private creators and possessive individuals, but rather as civic heroes, servants of public enlightenment. (20)

Hoping to establish the French book trade on a new, secular footing, the Abbe Sieyes in 1791 proposed passing a "Law on the Freedom of the Press" that he had written with the help of Condorcet, among others. Like the English Statute of Anne, the Sieyes law recognized authors' texts as a form of property, originating with their creators, and susceptible to legal protection; yet at the same time, the Sieyes law reflected Condorcet's concern for the "public interest" by limiting exclusive claims upon literary property to the lifetime of the author, plus ten years.

In the heated climate of revolutionary Paris, the law proposed by Sieyes satisfied no one. Many journalists rejected any law that threatened to limit the free circulation of texts. Revolutionary pamphleteers denounced it as a resurrection of discredited feudal privileges. Veteran book publishers demanded a restoration of their former rights and privileges.

It was only in 1793, after the Paris Book Guild had ceased functioning as a lobbying group, and after the seizure of power by the Jacobins, that the National Convention was able to pass a slightly revised version of the Sieyes law, now touted as a "Declaration of the Rights of Genius." The law of July 19, 1793, became the basis for all subsequent literary property law in France. It ratified the compromise proposed by Sieyes in 1791 and, like the British Donaldson v. Becket decision of 1774, enshrined the concept of a limited property right as the best means to strike a balance between remunerating authors and protecting the public interest in the advancement of learning.

In these years, a great many German writers and intellectuals closely followed the debate over intellectual property in France. Since there was no unified German state until 1870, there was no centralized authority to regulate the book trade. Still, a number of individual German states did pass laws similar to the revised Sieyes law. In 1794, for example, the largest German state, Prussia, revised its general legal code to reaffirm the privileges of publishers, but also to extend similar privileges to authors.

During the Napoleonic period, when the French civil code was imposed on many German states, even more principalities followed the French model: Baden was the first German state to grant real copyright to authors (1806, 1810), and the phrase Rechten des Urhebers (authors' rights) was first used in Bavaria in 1813. Beginning with the Congress of Vienna in 1815, authors' rights were increasingly and more uniformly recognized in German law. It was not, however, until 1870 that Imperial Germany successfully adopted a uniform copyright law similar to those of the French and the English. (21)

It is no coincidence that the English phrase "intellectual property" should first appear in 1845, according to the Oxford English Dictionary. By then, a broad consensus had emerged that "copyright" should strike a balance between the interests of the intellectual property owner and the public good: authors and inventors could profit from their works and their ideas, but only for a limited span of time.

But this is by no means the end of the story. Because the modern laws regulating intellectual property rest on a largely unexamined set of contradictory philosophical assumptions, these laws have been uniquely vulnerable to challenge -- not least by the continuing rise of new methods of distributing ideas and information across national boundaries. As a result, the philosophical tensions at the heart of modern concepts of intellectual property have been played out on an increasingly global scale, reworking the balance between private rights and the public interest, often in dramatic new ways.

The industrial revolution created an international market for literary works and mechanical inventions -- and so created a new need for a regime of international intellectual property rights. By the middle of the eighteenth century, French competition with Belgian and Swiss publishers had led to the first major international copyright treaties. In 1858, a Congress of Authors and Artists convened by Victor Hugo held its first meeting in Brussels in an effort to formulate a truly international basis for the universal protection of authors' rights. Unable to secure agreement on such a universal regime, the congress instead enunciated a doctrine of "national treatment," asking each nation to extend the legal protections it offered to domestic writers and inventors to foreign writers and inventors as well.

A generation later, in 1886, a series of conferences held in Berne led to the signing by ten European nations of the first international copyright treaty. (22) Despite the doctrine of "national treatment," the process of internationalizing copyright protection tended to strengthen universalist claims for protection of inviolable natural rights against statutory limits imposed by particular nations on utilitarian grounds. This progressive shift in the legal spectrum toward the enforcement of natural rights has led to a steady strengthening of private intellectual property right claims over the doctrine of the public interest. Thus, over the course of the nineteenth and twentieth centuries the private claims of holders of authorial rights or copyrights have been repeatedly extended from the initially modest ten to fourteen years after the author's death to the current terms of fifty and sometimes seventy-five years after the author's death in most countries with liberal copyright regimes.

Positions on copyright were clearly not the product of disinterested jurisprudential reflection. By the nineteenth century it became clear that nations that were net exporters of intellectual property, such as France, England, and Germany, increasingly favored the natural-rights doctrine as a universal moral and economic right enabling authors to exercise control over their creations and inventions and to receive remuneration. Conversely, developing nations that were net importers of literary and scientific creations, such as the United States and Russia, refused to sign on to international agreements and insisted on the utilitarian view of copyright claims as the statutory creations of particular national legal regimes. By refusing to sign international copyright treaties, the developing nations of the nineteenth century were able to simply appropriate the ideas, literary creations, and scientific inventions of the major economic powers freely.

The United States offers an exemplary case. As it evolved from being a net importer of intellectual property to a net exporter, its legal doctrines for regulating intellectual property have tended to shift from the objectivist-utilitarian side of the legal balance toward the universalist-natural-rights side. In early-nineteenth-century America the first great publishing houses in New York, Philadelphia, and Boston built fantastic fortunes on unauthorized, and unremunerated, publication of British writers. They justified their practices on the utilitarian grounds that copyright was statutory and that it was in the American public interest to have great works available for the cheapest possible prices. (23) Harper's Monthly, for example, was created exclusively from unauthorized reproductions of copy from British magazines. In 1843 a copy of Charles Dickens's A Christmas Carol sold for six cents in the United States, while in England it cost the equivalent of two dollars and fifty cents. (24) The Reverend Isaa c K. Funk, founder of Funk and Wagnalls, made his initial fortune by pirating Ernst Renan's The Life of Jesus. Against these large publishing and printing businesses a movement for American recognition of international copyright claims emerged by the 1830s, led largely by American writers and fellow advocates of a nativist American culture who felt that without international copyright indigenous writers could not compete with their British counterparts in the American literary market. They drew increasingly upon the rhetoric of authors' universal natural rights, and they appealed on patriotic grounds to Congress to act to encourage American letters by preventing cheap reprints of unauthorized British texts.

Not surprisingly, despite repeated petitions to Congress from distinguished writers in both America and England, this movement was repeatedly thwarted by the more intensive lobbying of the American publishing industry in the name of the public interest. Thus the Sherman and Johnson publishing house of Philadelphia sent the following protest to the Senate and the House in 1842:

All the riches of English literature are ours. English authorship comes to us free as the vital air, untaxed, unhindered, even by the necessity of translation, into the country; and the question is, shall we tax it, and thus impose a barrier to the circulation of intellectual and moral light? Shall we build up a dam to obstruct the flow of the rivers of knowledge? (25)

Knowledge was there for the taking if the grab could be justified by the public good. A radical version of Condorcet thrived in mid-nineteenth-century America. By the 1870s the American debate became sharply focused. On one side, trade protectionists, printers' unions, and publishing houses whose fortunes were rooted in pirating British literature argued against any international agreement. On the other side, advocates of indigenous authors allied themselves with partisans of free trade and international copyright, claiming universal natural rights of authorship.

A critical shift in the political balance occurred in the 1880s as the older American publishing houses on the east coast began to see their profits eroding in the face of a new generation of mass penny-press publishers, expanding especially in the midwestern states, who undercut their costs and reached yet wider markets. In the face of this challenge the older houses reshaped their business strategies and their arguments about intellectual property. They now realized that they would be better positioned than the new generation of publishers to sign exclusive copyright agreements with foreign authors that would be enforceable within the United States. The signing of the Berne Convention in Europe in 1886 added further momentum to a shift in the views of major publishing houses like Harper's and Scribner, who recognized the advantage of the movement for American adherence to some form of international agreement, at least with England. American theologians, including the Reverend Isaac Funk, now denounced the "national sin of literary piracy" (which had allowed him to make his fortune on his pirated Life of Jesus) as a violation of the seventh commandment. (26) And their voices resounded on the floor of Congress. Although Congress refused to sign the Berne Convention on the grounds that American law did not recognize authors' natural rights, in 1891 an international agreement with England for reciprocal copyright protection was finally signed by Congress.

By the opening of the twentieth century, as America came to be a full-fledged competitor in international commerce in intellectual property and a net exporter of intellectual property, American legal doctrine began to move toward an increasing recognition of unique authorial rights rooted in the sanctity of the personality of the creator, rather than simply in commercial privileges extended for utilitarian ends. The personality theory of intellectual property had been present in the Anglo-American tradition since the eighteenth century, but the single most important source for this shift in principle was the Supreme Court decision written by Justice Holmes in Bleistein v. Donaldson (188 U.S. 239) in 1903. (27) The case involved the commercial reproduction of images used in a circus poster. The argument of the defendant, Donaldson, was that the images were of such a generic nature as to contain insufficient originality to qualify as artistic creation susceptible to copyright protection. The Holmes court demur red, arguing that the courts were not to be put in the role of literary or artistic critics, that is, judges of the artistic merit of a work, and that moreover, any created image "is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone."

Through the Holmes decision the rhetoric of authorial originality and natural rights - the Defoe, Diderot, and Lessing side of the Enlightenment debate - made its way into American jurisprudence at the very moment when America began to supplant Europe as the hegemonic global economic power. The course of twentieth-century American copyright law - from Bleistein v. Donaldson through United States adherence to the Berne Convention in 1988 to the Digital Millennium Copyright Act of 1995 - has been a story of the steady strengthening of the proprietary rights of intellectual property owners at the expense of public access and interest. (28) It is a history of the tipping of the balance in the founding principles of eighteenth-century intellectual property law away from the aim of public utility through "encouragement of learning" toward the enhancement of private commercial gain.

The tension between utilitarian interests and authors' natural rights has also played itself out in modernizing societies beyond the United States and Western Europe. Developing nations, which are net importers of cultural goods and technology, find themselves in the position of the United States in the nineteenth century. And the tendency has been for these nations to hold fast to the utilitarian claim that the national public interest should come before recognition of the natural right to property in international copyright, patent, or trademark claims asserted by exporting nations.

In Russia and China the eighteenth-century battles were fought in much the same terms, although with different actors. Theocratic authority gave way to secular power within a Marxian framework, which drew upon the Lockean notion that new ideas and inventions were the result of the mind working upon natural resources. This led to a labor theory of intellectual production that was assimilable to the Marxist notion of the labor theory of value. But Marx gave it a twist la Condorcet. He argued that labor was inherently social rather than individual in nature, even in the case of mental labor, when the mind worked alone with its own resources. In his early manuscripts, Marx suggested that this was because the creating individual was the product of social experience -- he owed his livelihood and education to the society that produced him. Because he worked with natural resources that should belong to all, his mental labors were social, and hence the products of them should belong to society as a whole. The people, in the form of the revolutionary people's state, were thus to lay claim to the right to exploit the creations of individual authors and inventors. (29) The early Bolsheviks thus famously "nationalized" a list of great Russian writers following the 1917 revolution. And Chinese authorities during the Cultural Revolution promulgated the following popular saying: "Is it necessary for a steel worker to put his name on a steel ingot that he produces in the course of his duty? If not, why should a member of the intelligentsia enjoy the privilege of putting his name on what he produces?"

The story of intellectual property in Russia and China, despite brief experiments with liberal property-based regimes in the early twentieth century, has essentially been a story of the devolution of a monopoly on ideas and inventions from theocratic regimes to communist states. In both the Soviet and Chinese communist regimes, however, there was an increasing recognition of the necessity to create nonproperty-based incentives for individual authors and inventors. A system of state-issued awards, prizes, and privileges became the socialist mechanism for encouraging creation and invention. The Soviet Union created a system of "Authors' Certificates" that recognized individual contributions to the public good, and the Chinese, after the Cultural Revolution, followed suit. While the state retained the power to exploit, or not exploit, the contributions of these individuals, the certificates made their bearers eligible for material rewards and for remuneration from the profits generated by their creations. In soc ialist countries, the logic of utilitarianism - married to a state monopoly on the distribution of knowledge - led to a system of public patronage of authors and inventors rather than a recognition of their individual property rights.

Islamic states have followed yet another path. These states have remained theocracies, and so shari'a, or Koranic law, remains the highest authority, even for secular potentates. Koranic property law traditionally applied only to tangible things that could be apprehended by the five senses. It is notoriously silent on the question of ownership of ideas. (30) In Islamic jurisprudence, however, where the Koran is silent, governments are permitted to make a new law, as long as it does not explicitly conflict with Koranic injunctions. As a consequence, in the twentieth century a body of intellectual property law has emerged in most Islamic states, based on Western legal codes.

These Western-style copyright laws have recently come under new scrutiny by Muslim jurists, and a lively debate has emerged between legal scholars as to whether any concept of ownership of ideas is compatible with shari'a. Some scholars argue that the concept of "intellectual property" is inherently incompatible with the Koranic injunction against the ownership of anything intangible, suggesting that it will only lead to private monopolies of some individuals over knowledge. Others make the distinction between ideas and their tangible expression and defend the modern concept of copyright. (31)

Because these states remain essentially theocratic in nature, however, the law has preserved the state's right to censor all publications as it deems necessary, and to assert the broad discretionary power of the government to set limits on the terms and duration of an author's or inventor's rights in relation to his creations. In Iran, for example, the duration of private copyright claims is set at thirty years after the author's death. The state then retains an exclusive right on the creation for another thirty years before it is made accessible to the public at large. Moreover, Islamic states in general do not extend copyright protection to nonnationals, although some bilateral agreements have been signed between Arab nations. In the international arena, Islamic law has thus tended toward the utilitarian position that the state's interest is higher than any notion of the universal natural rights of authors or inventors.

In the closing decades of the twentieth century the outlines of a serious conflict over the nature and scope of intellectual property have emerged in the international arena. In general, developing nations - including not only China, Taiwan, Russia, and the Middle Eastern states, but African and South American nations as well - have employed the utilitarian argument, derived from Condorcet, that intellectual property is inherently social in nature and that the state has the right to limit the individual claims of its citizens as well as others in the name of the public good. This argument is used, as it was in nineteenth-century America, to justify these nations' refusal to recognize copyright and patent claims by nonnationals.

Conversely, the United States and Western Europe have witnessed a shift in their jurisprudential traditions away from the utilitarian side of the eighteenth-century intellectual property balance and toward an unprecedented strengthening of the doctrine of the universal natural rights of authors and inventors to the exclusive commercial exploitation of their creations and inventions. And since the 1970s the United States and Western European nations have been increasingly aggressive in using trade sanctions and international trade agreements to coerce developing nations to recognize precisely this view of intellectual property rights. (32)

The consequences of this evolution in Western, and especially American, intellectual property law are troubling for several reasons. Most immediately, in the global arena questions of patents on AIDS drugs, stem cells, and ethnobotanical practices are morally urgent. The dominance of the natural-rights view leads to immediate suffering and to the appropriation of local knowledge for international gain. The loss of a legal balance in the global arena risks giving monopolistic power to exporter nations. Equally important, it puts at risk the liberal political balance between individual gain and the public good that was the foundational aim of the intellectual property laws within Western democratic polities themselves. The cultural and scientific health of Western democracies in the future will depend on a public renewal of the animating mission of the Enlightenment concept of intellectual property: to dismantle commercial monopolies on the circulation of thought and to spread knowledge freely among our citize nry.

(1.) William P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law and Chinese Civilization (Stanford, Calif.: Stanford University Press, 1995), esp. 25-29. I would like to thank the National Humanities Center in Research Triangle Park, N.C., for its support of the research and writing of this essay. I would also like to thank Thomas Laqueur and Robert Post for their comments and criticism.

(2.) Ibid.

(3.) Johannes Pedersen, The Arabic Book, trans. Geoffrey French (Princeton, N.J.: Princeton University Press, 1984; original publication: Copenhagen, 1946); William A. Graham, "Traditionalism in Islam: An Essay," Journal of Interdisciplinary History XXIII (3) (Winter 1993): 495-522; Francis Robinson, "Technology and Religious Change: Islam and the Impact of Print," Modern Asian Studies 27(1) (1993): 229- 251.

(4.) Sayed Hassan Amin, Law of Intellectual Proper ty in the Middle East (Glasgow: Royston, 1991), 3.

(5.) The Hedaya 92 (1795), cited in Steven D. Jamar, "The Protection of Intellectual Property under Islamic Law," Capital University Law Review 21 (1992): 1085.

(6.) Gaines Post et al., "The Medieval Heritage of a Humanistic Ideal: 'Scientia Donum Dei Est, Unde Vendi Non Potest,"' Traditio 11 (1955): 195-234.

(7.) Natalie Z. Davis, "Beyond the Market: Books as Gifts in Sixteenth Century France," Transactions of the Royal Historical Society, ser. 5, 33(1983): 69-88.

(8.) Francis Wayland, The Elements of Moral Science (London: The Religious Tract Society. n.d [1835]), 275.

(9.) George Bancroft, Literary and Historical Miscellanies (New York: Harper & Brothers, 1855), 412, 427.

(10.) Chan Hok-Lam, Control of Publishing in China: Past and Present (Canberra: Australian National University, 1983), 2-24.

(11.) Leonardas Vytautas Gerulaitis, Printing and Publishing in Fifteenth-Century Venice (Chicago: American Library Association; London: Mansell, 1976).

(12.) John Feather, Publishing, Piracy and Politics: A Historical Study of Copyright in Britain (London: Mansell, 1994).

(13.) Henri-Jean Martin, Livre, pouvoirs et societe a Paris au 17eme siecle (1598 - 1701) (Geneva: Droz, 1969).

(14.) W. H. Buford, Germany in the Eighteenth Century: The Social Background of the Literary Revival (Cambridge: Cambridge University Press, 1965); Albert ward, Book Production, Fiction and the German Reading Public, 1740-1800 (Oxford: Oxford University Press, 1974); Roger Chartier, The Order of Books (Stanford: Stanford University Press, 1994).

(15.) Raymond Birn, "The Profit in Ideas: Privileges en librairie in Eighteenth-Century France," Eighteenth-Century Studies 4 (2) (1971): 131-168.

(16.) Denis Diderot, Oeuvres Completes, 15 Vols. (Paris: 1970), 5:331 (my translation).

(17.) Martha Woodmansee, "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author,'" Eighteenth-Century Studies 17(1984): 425-448.

(18.) Mark Rose, Authors and Owners. The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993).

(19.) See Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), esp. 180--202; and Jane C. Ginzburg, "A Tale of Two Copyrights: Literary Property in Revolutionary France and America," Tulane Law Review 64(5) (May 1990): 991--1031.

(20.) Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789--180 (Berkeley: University of California Press, 1991).

(21.) Reinhard Wittmann, Geschichte des deutschen Buchhandels: ein Uberblick (Munich: Verlag C. H. Beck, 1991).

(22.) Peter Burger, "The Berne Convention: Its History and Its Key Role in the Future," Journal of Law and Technology 3 (1) (Winter 1988).

(23.) Aubert J. Clark, The Movement for International Copyright in Nineteenth-Century America (Washington, D.C.: The Catholic University of America Press, 1960).

(24.) Sidney Moss, Charles Dickens' Quarrel with America (Troy, N.Y.: Whitson Pub. Co., 1984).

(25.) Cited in Clark, The Movement for International Copyright, 77.

(26.) Henry Van Dyke, The National Sin of Literary Piracy (New York: Charles Scribner's Sons, 1888).

(27.) Robert C. Post, "Reading Warren and Brandeis: Privacy, Property, and Appropriation," Case Western Reserve Law Review 41 (3) (1991): 658-662.

(28.) James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996); and Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001).

(29.) John N. Hazard, Communists and Their Law (Chicago: University of Chicago Press, 1969), 243-268; Serge Levitsky. Introduction to Soviet Copyright Law (Leyden: A. W. Sythoff, 1964); Michael A. Newcity, Copyright Law in the Soviet Union (New York: Praeger Publishers, 1978); Alford. To Steal a Book is an Elegant Offense.

(30.) Steven D. Jamar, "The Protection of Intellectual Property under Islamic Law," Capital University Law Review 21 (1992): 1079-1106; Sayed Hassan Amin, Law of Intellectual Property in the Middle East (Glasgow: Royston, 1991).

(31.) See Simon Buckingham, "In Search of Copyright in the Kingdom," Middle East Executive Reports, 8 May 1988, and Mufti Taqi Usmani, "Copyright According to Shariah," Albalagh, an Islamic E-Journal (23 April 2001).

(32.) Alford, To Steal a Book is an Elegant Offense; Zachary Aoki, "Will the Soviet Union and the People's Republic of China Follow the United States' Adherence to the Berne Convention?" Boston College International and Comparative Law Review 13 (Winter: 1990): 207-235; and Natasha Roit, "Soviet and Chinese Copyright: Ideology Gives Way to Economic Necessity," Loyola Entertainment Law Journal 6 (1986):53-71.

Carla Hesse is a profrssor of history at the University of California, Berkeley. Her current research interests include legal and cultural aspects of political violence, in particular the French Terror of 1793 -1794. She is the author of "Publishing and Cultural Politics in Revolutionary Paris" (1991) and "The Other Enlightenment: How French Women Became Modern" (2001).

Publication Information: Article Title: The Rise of Intellectual Property, 700 B.C.--A.D. 2000: An Idea in the Balance. Contributors: Carla Hesse - author. Journal Title: Daedalus. Volume: 131. Issue: 2. Publication Year: 2002. Page Number: 26+.

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