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7. The De Facto Culture of Intellectual Property

Scrutinizing the contents of dictionaries, encyclopedias, poetic miscellanies,
magazines, and other works teaches us that, for all the careful tracing of legal
cases that scholars have done, we still know very little about the de facto
culture of "intellectual property" as it has operated in the book trade.[61]
Although this regrettable gap in our knowledge obtains not only for the
hand-press period in Britain, but also internationally and during later
periods as well, eighteenth-century England makes a good case in point.[62]
Biographical dictionaries and other eighteenth-century works of reference
typically recycled information and sometimes reprinted large passages from
earlier works with little or no alteration—viz., the Biographia Britannica
(1747-66) borrowed extensively from the General Dictionary (1734-41),
and Robert Shiells' Lives of the Poets (1753) used material from both of

these—without any known accusations of plagiarism being made.[63] As
Ephraim Chambers stated in the article on "Plagiary" in his Cyclopaedia
(1728):

Even Johnson's highly celebrated Prefaces Biographical and Critical to the
Works of the English Poets (1779-81) is very free in its use of sources—the
great biographer routinely fails to acknowledge evident debts to published
works, especially biographical dictionaries and other works of reference.[65]
Johnson's work was, in turn, plagiarized almost immediately.[66]

Just as with reference books, so too are many eighteenth-century verse
miscellanies closely related to one or more earlier publications, though the
degree to which `new' miscellanies are indebted to antecedent collections has
not been generally recognized. Poems by the Most Eminent Ladies of Great
Britain and Ireland Re-Published from the Collection of G. Colman and B.
Thornton . . . with Considerable Alterations, Additions, and Improvements
(1785) provides an illustrative example. Chantel Lavoie has revealed that
the anonymous editors of the 1785 text "borrowed heavily [without acknowledgment]
from a four-volume collection compiled by James Harrison and
titled The Lady's Poetical Magazine, or Beauties of British Poetry," published
in 1781-82. Moreover, "Harrison had, in turn, borrowed [also without
acknowledgment] older material from the first edition of Poems by Eminent
Ladies (1755) to include in The Lady's Poetical Magazine."[67] Thus, the 178182
collection utilized the 1755 anthology, the 1785 version of which used
material from the 1781-82 volumes. It is plausible that the 1785 compilers
may have elected to remain anonymous because they owned neither the Colman

and Thornton text, nor the works they had arrogated from Harrison.
In the second half of the eighteenth century, such cases of unauthorized appropriation
appear to be more the rule than the exception.[68] The same is true
for song books and jest books; even many grammars and other school books,
as well as almanacs—all of which potentially constituted a highly lucrative
market—were regularly plagiarized.

Imaginative works too manifest an attitude toward intertextuality and
literary borrowing that suggests we need to think beyond the body of statutes
and legal cases regarding copyright if we are to develop a more realistic
understanding of how copyright and its attendant notions of intellectual
property actually functioned in the period. The famous diatribe against
plagiarism in Book 5, Chapter 1 of Tristram Shandy—which turns out to
have been plagiarized from Robert Burton, who himself stole passages of his
text from others—is merely one of the more memorable instances of such
borrrowing. Jonathan Swift, who may have inspired Sterne's clever joke, also
mockingly implicated himself as a plagiarist in his Verses on the Death of
Dr. Swift when the persona claims about the Dean, "But what he writ was
all his own" (Poems 493, line 318)—a line stolen almost verbatim from Sir
John Denham's 1667 poem, On Mr. Abraham Cowley (l. 30). More seriously,
Alexander Pope was routinely accused by his rivals and enemies of "plagiary,"[69]
often with good cause.[70]

Most importantly in this vein, there is a tremendous gap in our knowledge
about piracy—especially in northern England and Scotland, and so-called
"moral piracy" in Ireland.[71] So much basic research is yet to be done
concerning who the pirates were, the extent of their enterprise, the distribution
networks they employed (domestic, foreign, and colonial), and the nature
of their economic impact. The paucity of our knowledge on these fronts effectively
means that there is a significant flaw in our working models of the
ways in which the book trade operated in the British Isles, c. 1750-1830. The
work of other book historians and the nature of piracy itself suggests that the
de facto culture of intellectual property remains an inadequately understood
aspect of book history across most periods and in most places. Although I have
not investigated the matter in detail, it seems that, for eighteenth-century
Britain at least, the gaps in our knowledge come from all three classes of
ignorance: a failure to synthesize what is already known, a promising area of
research that has not been properly investigated, and, inevitably, lacunae in
the surviving historical record, especially with regard to clandestine activities.