~Let me take up again the question of copyright that apparently marks out some of the limits to freedom of speech in liberal society. In a detailed account of the legal disputes over the perpetuity of copyright in late eighteenth-century England, Mark Rose has demonstrated how the idea of incorporeal property (the literary work) emerged through the concept of the author as proprietor. To begin with, those who argued for perpetual copyright did so on the understanding that the author had a natural property right to something he had created. When opponents of unlimited copyright insisted that ideas as such couldn’t be considered property, and that copyright should therefore be treated as a limited personal right exactly like a patent, they were countered by the argument that the property being claimed was neither the physical book that could be purchased, nor the ideas communicated, but something made up of style and sentiment. “What we here observe,” Rose writes, “is a twin birth, the simultaneous emergence in the discourse of the law of the proprietary author and the literary work. The two concepts are bound to each other.”
It should be clear that the law of copyright is not simply a constraint on free communication but also a way of defining how, when, and for whom literary communication (one of the most valued forms of freedom in modern liberal society) can be regarded as free, creative, and inalienable. A person’s freedom to say whatever he or she wants, how he or she wants, depends in part on a particular notion of property. It implies a particular kind of property-owning subject whose freedom of speech rests on the truth of what is spoken—that is, created and offered to the public, but never in its essence alienated.
Thus, while cultural historians have already written at length on the Romantic vocabulary of national freedom movements, historians of literature have now begun to trace the Romantic roots of the concept of “the literary work” through the mutual shaping of freedom and constraint.17 It remains to be investigated to what extent the general idea of “freedom of speech” also has those roots. Such a genealogy has still to be mapped so that we can regard it not as the demand of secular reason but as the outcome of a Romantic project aiming at the construction of virtuous human subjects.~