Jenkins on Copyright Law and Political Theology

Joseph S. Jenkins (U. of California, Irvine) has posted Copyright Law and Political Theology: Censorship and the Forebear’s Desire. The abstract follows. NB: The article is behind a paywall on JStor.

This historical exploration, treating limit moments of copyright law, illuminates correspondences among copyright, censorship, pacts between the sovereign and commercial profit seekers, and inheritance law. Relevant to all of these are powerful forebears’ desires for recognition, modeled on the theological pattern of the father God’s omnipotent Will. Failure to recognize the wide persistence of this premodern theological pattern–which contrasts considerably with the common view that copyrights main function is to incentivize the new–may result in faulty analysis of copyright law, including fair use.

The study begins with Henry VIII’s 1538 Proclamation, which initiates a nationwide book-licensing regime. The Proclamation is put into context with other concerns of Henry at that time. Additional moments treated in this study include: Venetian printing privileges in the late fifteenth century; the London Stationers’ Company as an incorporated mechanism suitable to the crown’s ideology-control projects; efforts by Ponsonby, Greville, and Walsingham to block a competitor’s licensing of a Sidney Arcadia manuscript; the intellectual property clause of the U.S. Constitution; Wordsworth’s later-in-life attempts to make endure eternally, through copyright, the atemporal moment of creation that arose from his early poetry; and Sonny Bono’s (and our own) surprising resemblance to Wordsworth. The conclusion urges joint consideration of copyright and inheritance-law policies.

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