Abstract

Kant’s essay on the question of literary piracy has so far been read as a foundational text in the history of literary property. When Kant refers to the book as a “mute instrument,” scholars of intellectual property already know how to interpret that formulation because they presume the distinction that the contemporary jurisprudence of intellectual property makes between matter and form and its concomitant assumption that print is just an inert, nonagentive medium. In fact, Kant begins his analysis of unauthorized publication not with the question What is an author? but with the question What is publication?. His insight was that unauthorized publication revealed a structural feature of publication in general. The effect of the interposition of print, or the fact that speech begins in and with print, is that the author is structurally alienated from his or her speech. Kant was not an Enlightenment media theorist, but he recognized that speech had to be mediated and therefore delivered to the reader and that it was the medium itself that determined the conditions under which authors and readers could exist and be present to one another and under which speech could become an authorship. In order to create a language channel for public reason, Kant had to take a detour through the legal fiction of agency. Speech might have been an action that could have its existence “only in a person,” but this supposedly innate bond was made by a legal fiction of representation, according to which one person could truly speak “as if” they were another. Kant’s answer to the question What is a book? developed a law that was not so much a law of literary property as a law that sought to suspend the alienating effects of print so as to restore the Enlightenment ideal of communication.