UC Berkeley

Does the Hispanic tradition offer an alternative perspective to the problem of copyrights and digital piracy? This dissertation examines the narrative that connects copyrights and creativity. It focuses on how prevailing representations of the practice, circulation, and experience of creativity that link it to copyrights are governed by specific epistemological structures and a rhetoric of fear. The dissertation focuses on three competing and overlapping traditions of conceiving and codifying property and national identity: first, the personal, natural and deontological tradition of continental Europe which comes to be crystallized in droits d'auteur; then the commercial and utilitarian Anglo-American tradition represented by copyright; and finally the public domain-centered Hispanic tradition represented by its preprinting license and tasa.

My investigation traces the genealogy of each tradition and registers the increasing tension in the Hispanic world between notions of possessive individualism, droit moral and reason of state while documenting the relentless dominance of copyrights in postnational times. I argue that different codifications of individual property lead to opposing views of the public domain, which in turn relate to competing exemplars of sociopolitical organization. I show that the codification of intellectual property in the Hispanic transatlantic is peculiar in that it was aristocracy which defeated liberal bourgeois revolutions in the early modern and enlightenment eras. The debate seen as a hallmark of European modernity opposing, on the one hand, classic participative republicanism and droits d'auteur, and, on the other hand, liberal contractual republicanism and copyrights, is often superseded in the Hispanic tradition by a discourse stressing the importance of the public domain and the rights of «well-crafted works.» I argue that while copyrights and author laws are the response of corporate England and revolutionary France to the increasing power of printing guilds and corporations, the Spanish enlightened state of Carlos III addressed the similar problem of the power of religious corporations by protecting readers, through the empowerment of a secular sui generis printing tribunal, and through the legislation of the public domain. I put forward the idea that the codification of intellectual ownership as copyright is one of the key mechanisms by which literature becomes commodified. As such, copyright is one of the engines of a historical process of reification that asserts the materiality of culture over its «spiritual» content. In this regard, copyright replaces literal canonicity and becomes a technology of Schumpeterian creative destruction that ensures the affirmation of the new or emergent over the established: Enlightenment over Renaissance modernity; Liberal over Classic republics; and the global and hybrid postnational over an older universalizing humanism.

Within this framework, I develop a new genealogy of the legal codification of intellectual property starting with common property of the public domain in Spain in the sixteenth and seventeenth centuries, and continuing with northern Europe's codification of individual intellectual property in the seventeenth and nineteenth. My dissertation registers the implications of the the different conceptions of intellectual property and the public domain in the seventeenth and eighteenth century in Spain, as the Spanish imperial project failed in the nineteenth century, and then in contemporary times when the internationalization of copyrights through multinational treaties and the struggles to codify first cinema and then the Internet, reproduced a context similar to the one in which copyrights were first crystallized: a context of imperial justification and expansion.

My dissertation, then, engages in a double movement. On the one hand, it shows how recent controversies opposing Spain and the United States in regard to peer-to-peer file exchange are part of a long struggle over the codification of international law, and the construction of an international community to enforce it that evolves from the European struggle to legitimate its overseas empires in the early-modern era. On the other hand, it examines how these controversies are presented through rhetorical strategies that pose romantic creative expression and intellectual property legal protection as two universal human rights. This artifice ties an ethical- legal conceptualization of creativity to a neorepublican form of sociopolitical association, both of European origin, to the European imperial legacy.

The systematic analysis of the correlation between copyrights and creativity leads me to conclude that the volatility of copyrights does not put creativity at risk, but rather shows itself linked to imperial projects and institution associated to copyrights. Conversely, the Hispanic intellectual property tradition provides a new framework to think new media differently, and a more nuanced alternative to the idea of the death of creativity that the imperial narrative of copyrights presents. Of particular interest to me are the implications of such debates for Modern and Postmodern Spanish American transatlantic and transcontinental cultural production, with Spain and Mexico as my primary case-studies.