Stern on Tom Jones and the Economies of Copyright

Tom Jones and the Economies of Copyright is an essay by Simon Stern, Faculty of Law, University of Toronto. It appeared in Eighteenth-Century Fiction (1997). Here's the abstract:

This essay explores the metaphorics of copyright, and the conceptual and practical consequences of these metaphorics, during the era between the passage of the Act of Anne in 1710 and the 1774 judgment in Donaldson v. Beckett, which held that the statute limited the term of copyright to a term of no more than 28 years. Commentators on the nature and meaning of literary property included Joseph Addison, who spoke of the author's estate in terms of its agricultural produce; William Blackstone, who described a published work as a key to the author's private grounds; the anonymous pamphleteers in the debate over copyright reform in the mid-1730s, who compared the literary marketplace alternatively to an ever-expanding Field of Knowledge and to a privately owned manor where newcomers could only hope to obtain a Right of Common in [its] Waste; and the counsel in Millar v. Kincaid, who likened literary property to Wild-fowl that might fly the coop at any moment.

These metaphors ultimately bespeak two contrasting views about the world in which literature is produced and circulates. On one view, the materials available to writers, and their potential buyers, are thought to be limited in number, so that all forms of copying, from piracy to imitation, are seen as means of depletion. This view accords with the metaphors of literary theft and borrowing, which imagine a taking that depletes the source (and with the metaphor of plagiarism, literally slave-stealing). On the other view, writers and readers are thought to be so various that no real risk of depletion ever arises, because even ostensibly similar books will turn out to involve different modes of expression and will please different readers. This view accords with Renaissance theories of authorship as amplification and with the etymology of the word author itself, from augere, augment, increase.

The two alternative perspectives on the literary economy represent extremes, with many commentators and writers falling somewhere in between. The essay focuses on Henry Fielding's Tom Jones (1749), written while Fielding's publisher, Andrew Millar, was involved in the Kincaid litigation, which involved three allegedly pirated works including Fielding's earlier novel, Joseph Andrews. Seen through the lens of the copyright debate, many of Fielding's pronouncements on authorship in Tom Jones become legible as ironic comments about authors' foolhardy beliefs in their originality and their ability to dictate how readers use and revise their writings. Similarly, the plot of Tom Jones, and particularly its handling of the birth-secret, may be seen to challenge the restrictive model of authorship that treats imitation as theft.