Publishing Privacy: Intellectual Property, Self-Expression, and the Victorian Novel

Hastings Communications and Entertainment Law Journal

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Publishing Privacy: Intellectual Property, Self-

Expression, and the Victorian Novel

Jessica Bulman

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Publishing Privacy: Intellectual Property,

Self-Expression, and the Victorian Novel

ESSICA

ULMAN

∗

I. Introduction .......................................................................................74

II. Intellectual and Historical Context ................................................77

1. Urbanization and Industrialization..............................................77

2. Conceiving Privacy Through Intellectual Property....................79

3. Authors on Copyright....................................................................84

4. The Novel........................................................................................87

III. Plotting Privacy: Charles Dickens and Elizabeth Gaskell...........89

1. The Author’s Plea: Privatizing Intellectual Property.................90

A. Charles Dickens.........................................................................90

B. Elizabeth Gaskell ......................................................................94

2. Commodifying Privacy: The Threat of Blackmail......................97

3. The Privilege of Communal Privacy ..........................................100

IV. The Reader and the Novel’s Private Community....................... 106

V. Conclusion........................................................................................115

∗

B.A., English, Yale University, M.Phil., English, University of Cambridge. I would like

to thank Ruth Bernard Yeazell, Robert Dunne, Wai Chee Dimock, Traugott Lawler, and

Margaret Homans of Yale University for their insightful guidance and generous

encouragement.

74 H

ASTINGS

OMM

L.J. [26:73

I. Introduction

“Gentlemen, as I have no secrets from you, in the spirit of

confidence you have engendered between us,” Charles Dickens

addressed a Connecticut audience during his 1842 American tour, “I

would beg leave to whisper in your ear two words, International

This conflation of intellectual property interests and

confidentiality typified Dickens’s savvy strategy for addressing the

question of transatlantic copyright; he recognized that casting his

listeners as privileged intimates and his concern as personal, rather

than financial, would in fact bolster his argument for a lucrative

public agreement. But his appeal, I would argue, also suggestively

harnessed two concepts that were of vital importance to Victorian

authors—privacy and intellectual property. Because professional

authorship in the nineteenth century was a contested territory,

Dickens and his contemporary and friend, Elizabeth Gaskell, often

cloaked their literary endeavors in secrecy. More fundamentally, they

regarded writing as a personal matter. Even as their novels circulated

in the burgeoning literary marketplace, they understood their artistic

creations to have unique private value, and within their fiction they

impressed the importance of privacy and its strong conceptual

relationship to intellectual property.

The relationship between privacy and intellectual property has

resurfaced with a twist at the turn of the twenty-first century. If

Victorian authors regarded intellectual property as private,

contemporary proposals instead urge us to regard private information

as property. In response to technological developments that have

facilitated unprecedented invasions of individuals’ privacy, some

scholars have advocated legally classifying private information as a

form of property.

These scholars insist that the best way to respond

. Quoted in

LEXANDER

ELSH

, F

ROM

OPYRIGHT TO

OPPERFIELD

: T

DENTITY OF

ICKENS

32 (1987).

. See generally

ARY

OOVEY

, T

ROPER

ADY AND THE

OMAN

RITER

DEOLOGY AS

TYLE IN THE

ORKS OF

ARY

OLLSTONECRAFT

, M

ARY

HELLEY

AND

ANE

USTEN

(1984) (discussing the problematic nature of professional authorship

for female writers).

. See, e.g.,

Jerry Kang,

Information Privacy in Cyberspace Transactions

, 50 S

TAN

L. R

. 1193, 1246-94 (1998);

Kenneth C. Laudon,

Extensions to the Theory of Market and

Privacy: Mechanics of Pricing Information

RIVACY AND

ELF

-R

EGULATION IN THE

NFORMATION

43 (U.S. Dep't of Commerce ed., 1997); Lawrence Lessig,

The

Architecture of Privacy

, 1 V

AND

. J. E

. L. & P

RAC

. 56, 63-65 (1999); Patricia Mell,

Seeking Shade in a Land of Perpetual Sunlight: Privacy as Property in the Electronic

Wilderness

, 11 B

ERKELEY

ECH

. L. J. 1, 26-41 (1996); Richard S. Murphy,

Property Rights

in Personal Information: An Economic Defense of Privacy

, 84 G

. L. J. 2381, 2383 (1996;

2003] P

UBLISHING

RIVACY

to privacy violations, particularly corporate commodification of

personal data,

is to invest people with property rights that would

furnish control over their personal information.

Insofar as

intellectual property rights are currently understood to protect

commodities, such proposals could dangerously redefine privacy

rights and commodify the self.

If, however, we instead conceptualize

intellectual property as Victorian authors urged, a careful mapping of

intellectual property onto privacy could offer robust protection. A

relatively unheralded development of moral rights in nineteenth-

century intellectual property law, advanced by authors in courtrooms

and literary works alike, insisted that the right to control written

expression stemmed from its close connection to the self and treated

interest. The earliest arguments for a legal right to privacy, at the end

of the nineteenth century, capitalized on this understanding: to

ground the individual’s right to control private information, the most

influential of these proposals, Samuel Warren and Louis Brandeis’s

“The Right to Privacy,” invoked copyright cases that defined literary

Pamela Samuelson,

A New Kind of Privacy? Regulating Uses of Personal Data in the

Global Information Economy

, 87 C

. L. R

. 751, 769-73 (1999) (book review).

See

generally

Symposium, Cyberspace and Privacy: A New Legal Paradigm?

52 S

TAN

. L. R

987 (2000) (containing arguments both for and against treating private information as

property). Although privacy encompasses many different areas, including physical privacy

and decisional privacy, I focus in this paper on informational privacy.

See, e.g

., F

RED

H. C

ATE

, P

RIVACY IN THE

NFORMATION

14-15 (1997);

John Hagel III & Jeffrey F. Rayport,

The Coming Battle for Customer Information

, H

ARV

. R

. 53 (1997); Kang,

supra

note 3, at 1198-99. In the U.S., a right of privacy does

not exist when a person has published a matter by communicating it to a third party.

See

ILLIAM

L. P

ROSSER

& J

OHN

W. W

ADE

, T

ORTS

: C

ASES AND

ATERIALS

(1962), at 934.

The licensing of information by one company to another, when the information has

voluntarily been communicated to the first company, therefore does not constitute a

violation of privacy rights. In Europe, by contrast, it is illegal for a firm to release personal

data to a third party or to use such data for a purpose unrelated to the reason for which it

was collected.

See

Council Directive 95/46 of 24 October 1995 on the Protection of

Individuals with Regard to the Processing of Personal Data and on the Free Movement of

Such Data

, art. 6, 7, 1995 O.J. (L 281) 31. For a comparative analysis of the regulation of

personal information in the U.S. and Europe, see P

AUL

M. S

CHWARTZ

& J

OEL

EIDENBERG

, D

ATA

RIVACY

(1996).

See supra

note 3;

See also

ISSELA

ECRETS

: O

N THE

THICS OF

ONCEALMENT AND

EVELATION

19-20 (1982) (arguing

that “[c]ontrol over secrecy provides a safety valve for individuals in the midst of

communal life—some influence over transactions between the world of personal

experience and the world shared with others”); A

VISHAI

ARGALIT

, T

ECENT

OCIETY

201, 204 (Naomi Goldblum trans., 1996) (maintaining that violations of privacy

restrict “individuals’ control, against their will, over what is supposed to be within their

2003] P

UBLISHING

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fundamentally resembles and is derived from copyright, which, as

Warren and Brandeis argued, furnishes authors not only with profits

arising from sales, but also with the more expansive personal right to

regulate the publication of their works.

4. The Novel

While Warren and Brandeis productively looked to legal rulings

to ground their right to privacy, it is not judicial opinions that best

illustrate privacy’s relationship to intellectual property, but rather

literary works themselves. Victorian novels in particular illuminate

the connection between our modern conceptions of privacy and

intellectual property, which were, in many ways, coincident with the

rise of the novel. The novel has consistently been associated with

intellectual property rights—as the only literary genre wholly

connected with print, it is unequivocally protected under copyright,

which has traditionally covered written, but not oral, works. From its

inception, the novel has also been concerned with private

experience.

Ironically, however, the novel posits the importance of

its characters’ privacy while circulating their stories in public.

Dickens’s discussion of the city’s secrets in

A Tale of Two Cities

underscores the potential gap between the privacy novelists champion

and the publicity their novels effect.

According to some critics, the

novel demonstrates its concern with privacy by invading the private

sphere and displaying it to a mass audience.

The novel’s exploration of private lives, however, is not

ultimately a hypocritical violation of the privacy novelists claim to

control”); J

EFFREY

OSEN

, T

NWANTED

AZE

: T

ESTRUCTION OF

RIVACY IN

MERICA

(2000) (exploring legal, technological, and cultural changes that have

undermined the individual’s control over how much personal information is

communicated to others, and arguing that the injury inflicted by invasions of privacy is

that of being judged out of context).

But see

NITA

LLEN

, U

NEASY

CCESS

: P

RIVACY

FOR

OMEN IN A

REE

OCIETY

(1988) (arguing that inaccessibility, rather than control,

is the most important aspect of privacy).

45. W

ATT

supra

note 9,

at 174-207.

.See

ICKENS

supra

note 10.

. See, e.g

., P

ETER

ROOKS

, B

ODY

ORK

: O

BJECTS OF

ESIRE IN

ODERN

ARRATIVE

(1993); K

AREN

HASE

& M

ICHAEL

EVENSON

, T

PECTACLE OF

NTIMACY

: A P

UBLIC

IFE FOR THE

ICTORIAN

AMILY

(2000). The publicity of privacy

also resembles Foucault’s assertion that modern societies speak about sex endlessly “while

exploiting it as

the

secret.”

ICHEL

OUCAULT

, 1 T

ISTORY OF

EXUALITY

(Robert Hurley trans., 1980). There may in fact be a direct connection, because much of

what is private in modern societies concerns sexual behavior, and, as Kate Flint argues,

there was a close “proximity of textuality and sexuality in discourses of reading

throughout the Victorian and early Edwardian period.” K

ATE

LINT

, T

OMAN

EADER

: 1837-1914, at 4 (1993).

88 H

ASTINGS

OMM

L.J. [26:73

champion. Rather, privacy is valued and protected through the

privileged communion among reader, characters, and author. By

dramatizing both invasions and protections of personal information,

fiction illustrates privacy’s significance, and it models approaches to

private information for the reader. The novel’s exploration of

characters’ inner lives also effects a deep identification of readers

with these characters, so that as novels portray private lives, they

influence the reader’s own consciousness. The solitude in which

people typically read novels further fosters their intimacy with the

text. Walter Benjamin argues that stories are heard in the presence of

others, and readers of poems are prepared to utter words aloud, but

novel readers withdraw into themselves, so that the “reader of a

novel . . . is isolated, more so than any other reader.”

It is also worth

noting that the novel’s rise in the eighteenth century was

contemporaneous with increased domestic privacy, which entailed the

establishment of separate sleeping quarters for every member of the

family and locks on doors.

The novel accordingly came to be

associated with domestic spaces and a retreat from others. Even when

novels were read in public, for example on trains during the Victorian

era, they were a means of obtaining privacy in a public space; writers

of Victorian advice manuals recommended that women traveling

alone carry books that would serve as “bodyguards” by enabling them

to avoid conversation with strangers.

The novel is, then, a doubly private genre, for it explores the

subjectivity of characters and is also a site of the reader’s private

experience. In addition, the novel reflects concerns about the author’s

own privacy and self-expression, and these are bound up with

questions of intellectual property. As several nineteenth-century legal

cases suggest, Victorian authors believed their literary creations were

connected to their inmost selves, and they argued for the natural right

of authors to control publication. In publishing their works, these

authors carefully negotiated their own privacy with regard to their

readers. Within their novels, an emphasis on the importance of

characters’ control over personal information highlights the strong

conceptual relationship of intellectual property and privacy, and

48. Walter Benjamin,

The Storyteller

LLUMINATIONS

83, at 100 (Hannah Arendt

ed., 1968).

49. W

ATT

supra

note 9, at 188. These are clearly middle- and upper-class privileges,

and indeed privacy has traditionally been a class-based entitlement. The Victorian novels

of Dickens and Gaskell, however, insist that privacy rights must not be limited to those

who can afford them, as I will discuss.

50. F

LINT

supra

note 47, at 105.

2003] P

UBLISHING

RIVACY

anticipates the intellectual-property-grounded right to privacy posited

by Warren and Brandeis. Much as copyright inheres in individuals’

ability to control the publication of their self-expression, privacy in

these novels inheres in individuals’ control over personal information.

Charles Dickens and Elizabeth Gaskell, who were among the

most popular writers of the Victorian era, offer particularly

compelling access to Victorian authors’ ideas about privacy and

intellectual property. Their later works sold tens of thousands of

copies, and their novels were read by people of all classes and ages,

and by men and women alike. They also both published in serials,

including Dickens’s own

Household Words

and

All the Year Round

so that readers continuously enjoyed their novels throughout the mid-

Victorian era. Their voices at once informed and responded to public

opinion. Both novelists locate private information prominently in

their works and employ their own intellectual property to show not

only how privacy should be valued and preserved in the imagined

communities of their novels, but also how the reader—by assuming

the proper relationship to the author’s intellectual property and the

characters’ privacy—can become a part of these private novelistic

communities.

III.

Plotting Privacy: Charles Dickens and Elizabeth Gaskell

Given Dickens’s and Gaskell’s immense popularity, it may seem

ironic that private information holds a privileged place in their novels.

This is only a superficial paradox, however, for the mass circulation of

their works impressed upon them the importance of protecting

privacy and of exercising control over literary expression. Indeed, in

their often embittered battles to protect copyright in their works,

Dickens and Gaskell invoked their personal relationships to their

texts and the privacy concerns that, they argued, lay at the heart of

their desire to control these works. Within their novels, they

imaginatively explore the status of intellectual property, and they

insist that the author of a novel, or letter, or architectural plan, has

the right to control the publication of this creation because it is a form

of self-expression. Taking a cue from their treatment of intellectual

property, Dickens and Gaskell conceptualize privacy along similar

lines—for their characters, control over personal information is the

defining feature of privacy. In their novels, as in their lives, the

authors situate privacy and intellectual property in a mutually

enriching dialogue: casting private information as a form of personal

intellectual property furnishes the individual with the right to control

it, while casting intellectual property as a private communication

90 H

ASTINGS

OMM

L.J. [26:73

highlights its personal connection to the author and invests it with

unique importance.

1. The Author’s Plea: Privatizing Intellectual Property

A. Charles Dickens

For Dickens in particular, concerns about copyright manifested

as concerns about privacy, and he skillfully wove a discourse of

private investment and interpersonal confidences around his literary

works. The United States, in his life and fiction, came to symbolize

the need for both privacy and intellectual property rights, because he

associated the country with intrusions into his personal life and the

pirating of his literary works. During his 1842 tour, he complained of

being “so beset, waylaid, hustled, set upon, beaten about, trampled

down, mashed, bruised and pounded by crowds, that I never knew

less of myself in all my life, or had less time for those confidential

interviews with myself whereby I earn my bread, than in the United

States of America.”

As this passage suggests, invasions of privacy

threatened both Dickens’s sense of himself and his ability to write.

Throughout his life he needed solitude for his literary endeavors, and

his works stemmed from self-communion. By invading his privacy,

Americans also tampered with his artistic output.

Dickens’s association of privacy and textual integrity not only

reflected a personal concern during this trip, but also lay at the center

of his visit’s agenda—to make his voice heard in the contentious

debate over international copyright.

If he believed that literary

creations were in some important way private, he also realized that

embedding intellectual property concerns in a vocabulary of privacy

could earn him the sympathy and trust of his audience. In a letter to

Jonathan Chapman about international copyright, he wrote, “I open

my whole heart to you, you see! I write in such a spirit of confidence

that I pour out all I have felt upon this subject,—though I have said

nothing in reference to it, even to my wife.”

As I have discussed,

Dickens similarly attempted to establish intimacy with an audience in

. Quoted in

J. Hillis Miller,

The Sources of Dickens’s Comic Art: From

American

Notes

Martin Chuzzlewit, 24 N

INETEENTH

-C

ENTURY

ICTION

467, 469 (1970). Dickens

also described young women requesting locks of his hair and complained that, while he

was still on the ship, “[A] party of ‘gentlemen’ actually planted themselves before our little

cabin, and stared in at the door and windows

while I was washing, and Kate lay in bed

.”

Id.

.See

ELSH

, supra

note 1, at 30. Welsh extensively cites Dickens’s American

speeches, and I draw upon his wealth of information.

53. 3 T

ETTERS OF

HARLES

ICKENS

77 (Madeline House et al. eds., 1974)

(Feb. 22, 1842).

2003] P

UBLISHING

RIVACY

Connecticut by implying that the assembled crowd had solicited his

confidences and then whispering the words “International Copyright”

in their ears.

One reason, no doubt, for his treating intellectual property issues

as a private subject was his desire to distance himself from pecuniary

motives, which were, nonetheless, of utmost importance to him. An

international copyright agreement would have been a boon for

Dickens, who was immensely popular in the U.S. as well as England,

but advocating for such an agreement was precarious in a time when

professional authorship was considered an ungentlemanly pursuit.

Propriety demanded that a degree of privacy surround the debate

over a transatlantic copyright agreement. Dickens’s description of his

interest in more elevated terms—as the protection of his

personality—also reflects, however, his belief that intellectual

property was not like other property, for it was the expression of the

private self. His American speeches and letters reveal both his

awareness that disavowing monetary interest was, paradoxically, the

best way to make copyright pay, and his more fundamental conviction

that intellectual property was the site of his private investment. He

not only masked, but also compensated for his economic motives by

discussing intellectual property as a personal matter and by creating

an intimate relationship with the “dear reader” of his novels.

Martin Chuzzlewit

responds directly to Dickens’s American

experiences and is, characteristically, both a playful and scathing

account. A pivotal moment in the novel is Martin’s discovery that Mr.

Pecksniff has usurped his grammar-school design. According to the

novel’s logic, this theft is inevitable; when Pecksniff first asks Martin

to design the school, the narrator notes that “there were cases on

record in which the masterly introduction of an additional back

window, or a kitchen door, or a half-a-dozen steps, or even a water

spout, had made the design of a pupil Mr. Pecksniff’s own work, and

had brought substantial rewards into that gentleman’s pocket.”

This

is, of course, what happens when Pecksniff adds four windows to

Martin’s design and claims credit, leaving Martin fuming, “My

grammar-school. I invented it. I did it all. He has only put four

windows in, the villain, and spoilt it!”

. See infra

Part IV for a discussion of Dickens’s relationship with his reader.

See

also

ARRETT

TEWART

, D

EAR

EADER

: T

ONSCRIPTED

UDIENCE IN

INETEENTH

-C

ENTURY

RITISH

ICTION

(1996) (discussing reader address in the

Victorian novel).

55. C

HARLES

ICKENS

, M

ARTIN

HUZZLEWIT

94 (Penguin Books 1999) (1843-44).

.Id

. at 522.

92 H

ASTINGS

OMM

L.J. [26:73

Legally, Pecksniff has committed no offense, because Martin was

in his employ when he designed the building. Nonetheless, readers

experience this as an odious theft: Pecksniff has stolen Martin’s

unique creation. Martin’s exclamation that Pecksniff has “spoilt it”

highlights his personal investment in the work and contrasts with

Pecksniff’s greedy pecuniary motives. For Martin, intellectual

property is no mere commodity, but an expression of the self;

Pecksniff’s theft has stripped him of control over his creation, so that,

unlike the successful plaintiffs in Victorian intellectual property cases,

he has lost his prepublication rights and suffered the attendant

violation of his self. Within

Martin Chuzzlewit

, Dickens dramatizes

his own crusade on behalf of international copyright; he distinctly

separates personal and pecuniary motives in the characters of Martin

and Pecksniff and privileges Martin’s orientation. Martin’s concern

with his personal investment and self-expression rather than money

underscores Dickens’s insistence that the author’s natural right to his

works trumps financial considerations.

Martin Chuzzlewit

suggests the private value of intellectual

property generally,

David Copperfield

extends that novel’s claims to

literary property. This rather autobiographical work examines literary

privacy from the standpoint of a character-author who is in many

ways a surrogate for the novelist himself, and David’s authorial career

conflates the ownership of private experience and written works. Like

Dickens, who needed solitude to write and first published under a

pseudonym, David carefully conceals his writing: “I have taken with

fear and trembling to authorship. I wrote a little something in secret,

and sent it to a magazine, and it was published in the magazine.”

is anxious about publishing, it seems, because his works are closely

tied to his person and reflect his private self even as they are

constituted as property. It is the reflection of the author, Dickens

insists, that merits protection, and he advances this claim indirectly in

his own preface to the novel by linking the book to himself: “an

Author feels as if he were dismissing some portion of himself [when

he publishes a book].”

Given the association of privacy and intellectual property in

Dickens’s life and novels, it is perhaps not surprising that he

.See

Gerhard Joseph,

Charles Dickens, International Copyright, and the

Discretionary Silence of

Martin Chuzzlewit, in T

ONSTRUCTION OF

UTHORSHIP

supra

note 16,

at 260, 269.

58. C

HARLES

ICKENS

, D

AVID

OPPERFIELD

582 (Random House 2000) (1849-

1850).

.Id

. at xxvii.

2003] P

UBLISHING

RIVACY

fictionally models invasions of privacy as thefts of intellectual

property. In

Martin Chuzzlewit

, Pecksniff echoes his theft of Martin’s

design when he eavesdrops on a secret conversation between Tom

Pinch and Mary Graham and then usurps Tom’s role in the

discussion. Whereas Mary had spoken to Tom confidentially about

Pecksniff’s unwelcome advances, Pecksniff accuses Tom of addressing

“Miss Graham with un-returned professions of attachment and

proposals of love.”

He even pretends that Tom’s feelings of

disillusionment are his own and thereby appropriates Tom’s private

emotions to justify firing him. Much as Pecksniff steals and

transforms Martin’s grammar-school, he steals and transforms Tom

and Mary’s private discussion. These two thefts are in many ways

parallel cases; in both instances, Pecksniff impinges on other

characters’ personalities and recasts their self-expression as a form of

property that he controls. What had been meaningful because of its

intimate connection to the self, in Pecksniff’s hands assumes a value

independent of its proper owner and serves to advance his own

interests.

It is not only through Pecksniff’s usurpation that Martin’s

personal information becomes another’s property, for his entire

American experience, like Dickens’s, is an exercise in invasions of

privacy that transform his personal life into a public commodity.

From the moment he arrives in the U.S., newspaper editors bombard

the ship to advertise their papers. As their names signify, the

New

York Family Spy

New York Private Listener

New York Peeper

, and

New York Keyhole Reporter

commodify the private information of

others as their exclusive property. As Dickens would complain in

American Notes

, these newspapers occupy themselves by “pulling off

the roofs of private houses, . . . pimping and pandering for all degrees

of vicious taste.”

After some of his personal letters appear in the

Watertoast Gazette

, Martin learns just how closely he must guard his

private information from becoming public property, for not only

newspapers, but nearly every “distinguished gentleman” he meets

“procur[es] information of any sort in any kind of confidence, and

afterwards pervert[s] it publicly.”

By the end of his trip, Martin has a

newfound appreciation for privacy and a desire to protect his

personal information, and this makes him acutely sensitive to

Pecksniff’s theft of his intellectual property upon his return to

60. D

ICKENS

supra

note 55, at 472.

61. C

HARLES

ICKENS

, 1 A

MERICAN

OTES FOR

ENERAL

IRCULATION

210, 211

(1842).

62. D

ICKENS

supra

note 55, at 504.

94 H

ASTINGS

OMM

L.J. [26:73

England. Upon Dickens’s own return from the U.S., he continued to

crusade for an international copyright agreement that would protect

his intellectual property and his privacy, and he advanced his agenda

in part by embedding his concerns in his copyrighted novel,

Martin

Chuzzlewit

B. Elizabeth Gaskell

Elizabeth Gaskell’s first novel,

Mary Barton

, which she

published anonymously, similarly engages questions of privacy and

publicity that have a direct bearing on her own experience. The

mapping of private and public spheres, which occurs throughout the

novel, is most apparent when Mary’s former lover is killed by her

father, who works at his factory, and blame falls on Jem Wilson,

Mary’s future husband. Mary’s testimony at the widely attended

murder trial suggests some of the complications of female privacy in

the Victorian era. She is called to testify about her relationship to Jem

and is asked to publicly disclose information that conventions of

female modesty would prevent her from sharing even with Jem

himself—that she loves him. For a woman to declare her love, other

than in response to a male offer of marriage, was to cast herself as a

desiring subject and therefore to disregard propriety.

Female modesty, so highly valued during the Victorian era, was

defined in terms of privacy, but in fact strictures of modesty meant

that women often did not have control over what they did and did not

disclose. They were required not to discuss certain matters, and their

personal information was therefore not their own to publish or not as

they saw fit. Immediately after Mary refuses Jem’s marriage proposal,

for instance, she realizes that she loves him, but she cannot tell him

because “[m]aidenly modesty . . . seemed to oppose every plan she

could think of for showing Jem how much she repented her decision

against him.”

Victorian modesty, then, conformed to a model of

privacy-as-inaccessibility, rather than privacy-as-control, and it

highlights potential shortcomings of the former approach. Unlike the

control model, which is informed by intellectual property and stresses

individual decisions about personal information, the inaccessibility

model does not accommodate the individual’s choice of what

should

be published.

Ironically, the public trial enables Mary to disclose her love:

“[

]

she might even own her love. Now, when the beloved stood

thus, abhorred of men, there would be no shame to stand between her

63. E

LIZABETH

ASKELL

, M

ARY

ARTON

132 (Penguin Books 1996) (1848).

2003] P

UBLISHING

RIVACY

and her avowal.”

The rules of female modesty are subordinate to

justice during the trial, and Mary temporarily becomes an

autonomous legal subject. The public courtroom fosters meaningful

privacy, for it empowers her to choose whether to share her personal

information. She keeps to herself certain private knowledge that

would be devastating evidence—that her father is the murderer—

while disclosing her love for Jem. The very demands of the public

trial paradoxically allow her more complete control over, and

ownership of, private information than she could typically exercise as

a woman in Victorian society.

Mary’s desire to retain privacy and not become a spectacle

following the trial approximates Gaskell’s own desire to keep the

authorship of the anonymously published

Mary Barton

private.

Although Mary’s friend tells her, “You can’t hide it now, Mary, for

it’s all in print. . . . Why! it was in the

Guardian

,—and the

Courier

,”

Mary recedes from the public view and attempts to shelter herself and

Jem. Similarly, once Gaskell’s novel was “all in print” she tried to

retain control over the private information that she was the author. In

a letter to Edward Chapman, she expressed her displeasure with the

publication process in terms of privacy: “Hitherto the whole affair of

publication has been one of extreme annoyance to me, from the

impertinent and unjustifiable curiosity of people, who have tried to

force one either into an absolute denial, or an acknowledgement of

what they must have seen the writer wished to keep concealed.”

The

very first sentence of her preface to the novel further expresses her

desire to maintain privacy despite publication: “Three years ago I

became anxious (from circumstances that need not be more fully

alluded to) to employ my self in writing a work of fiction.”

Like her

heroine, who wants both to enter the public sphere and to keep

.Id

. at 325.

.Id

. at 358.

66.

THE

ETTERS OF

. G

ASKELL

, at 64 (J.A.V. Chapple & Arthur Pollard eds.

1967) (1966) (Dec. 5, 1848). Apparently Gaskell also hid beneath the breakfast table when

Mary Barton

was mentioned: “Elizabeth Gaskell, the anonymous novelist who ducked

under the breakfast table to hide her embarrassment at the mere mention of

Mary Barton

duplicates Mary’s mixed humiliation and pride in her position at the center of the

spectacle.” H

ILARY

CHOR

, S

CHEHEREZADE IN THE

ARKETPLACE

: E

LIZABETH

ASKELL AND THE

ICTORIAN

OVEL

41 (1992).

67. G

ASKELL

supra

note 63, at 3. This is, of course, a teasing comment, and critics

have sought to uncover these private circumstances, which most take to be the death of

her ten-month-old son, William, in 1845. Margaret Homans discusses another private

impetus for Gaskell’s writing: the death of her first child, a stillborn daughter, some fifteen

years earlier. M

ARGARET

OMANS

, B

EARING THE

ORD

: L

ANGUAGE AND

EMALE

XPERIENCE IN

INETEENTH

-C

ENTURY

OMEN

’

RITING

224 (1986).

96 H

ASTINGS

OMM

L.J. [26:73

certain matters private, Gaskell wants to publish her novel without

forfeiting her personal privacy. Literary publication, she insists, must

not be incongruous with privacy, for the author, not the audience,

should control the terms of disclosure.

The Life of Charlotte Brontë

, a biography that Gaskell wrote

in 1857 following her friend’s death, Gaskell suggests that her

concerns about privacy upon literary publication were shared by

contemporary female authors. For Brontë, the act of publishing

threatened a publication of the self, and following the publication of

Jane Eyre

she too insisted upon her right to privacy, declaring to a

correspondent, “I have given no one a right to gossip about me.”

Sounding much like Gaskell upon the publication of

Mary Barton

she further invoked legal terminology to insist, “I have given no one a

right either to affirm, or to hint, in the most distant manner, that I was

‘publishing.’”

As the similarity of Gaskell’s and Brontë’s concerns implies,

Victorian women found themselves in a precarious position when

they wrote for publication and monetary gain. Nineteenth-century

literary discourse assumed its authority by distancing itself from the

masculine sphere of the market; writing was feminized, but in a way

that had nothing to do with actual women and depended instead on

an idealized view of the domestic sphere.

Accordingly, “for a woman

to depart from that idealization by engaging in the commercial

business of writing was to collapse the boundary between the spheres

of alienated and nonalienated labor. A woman who wrote for

publication threatened to collapse the ideal from which her authority

was derived.”

Gaskell sought to balance issues of propriety, privacy,

and literary property in her publishing, and she negotiated her

position in the literary marketplace by treating her novels as personal

creations and casting remuneration as a response to time and

emotion. “I am also inclined to put a very high value upon [my

thought & trouble it has cost me,” she told her publisher, George

Smith.

68. E

LIZABETH

ASKELL

, T

IFE OF

HARLOTTE

RONTË

266 (Penguin Books

1997) (1857).

.Id

. See generally

ARY

OOVEY

, U

NEVEN

EVELOPMENTS

: T

DEOLOGICAL

ORK OF

ENDER IN

-V

ICTORIAN

NGLAND

(1988).

.Id

. at 125.

72.

THE

ETTERS OF

. G

ASKELL

supra

note 66, at 427 (Dec. 20, 1856).

2003] P

UBLISHING

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It was not, though, only female authors who treated their

intellectual property as inalienable self-expression, and Gaskell’s

comment could readily have come from Dickens’s pen as he

attempted to distance his intellectual property interests from

monetary concerns. Like Dickens, but with more at stake because of

her gender, Gaskell contended that her literary works were

intertwined with her private life even as she negotiated lucrative

contracts regarding the publication of her works. She treated

their creations, and she insisted upon exercising control over her

works. In turn, because her literary works were the site of many of

her own privacy concerns, Gaskell’s conception of intellectual

property informed her fictional representation of privacy, which

inhered for her in the individual’s control.

2. Commodifying Privacy: The Threat of Blackmail

Of course, as Gaskell and Dickens were keenly aware, treating

private information as a form of intellectual property might not so

much confer the right to control its publication as turn privacy itself

into a commodity. One reason that the two authors invoked the

personal basis of their literary creations was, in fact, to bolster their

commercial interests in their works; by casting literary works as

personal they made a compelling claim for remuneration. But as I

have argued, this is but a partial explanation, for Dickens and Gaskell

genuinely believed their works were intimately connected to

themselves. So too, they recognized private information as something

of particular personal value, and in their works they specifically

condemned blackmailers for treating private information as a

commodity rather than an aspect of self. By dramatizing the threat to

autonomy and intimacy that results from blackmailers’ market-driven

appraisals, Gaskell and Dickens emphasized the specifically non-

commercial value of private information and intellectual property.

Dickens’s most memorable characters are his oily villains who

invade other characters’ personal lives and trade in private

information. In

Martin Chuzzlewit

, not only Pecksniff but also Tigg

Montague perverts personal information by blackmailing Jonas

Chuzzlewit. Montague transforms Jonas’s secret into information

with an explicit monetary value—Jonas must pay him to keep his

73. For an important discussion of blackmail in the Victorian novel and the work of

George Eliot in particular, see A

LEXANDER

ELSH

, G

EORGE

LIOT AND

LACKMAIL

(1985).

98 H

ASTINGS

OMM

L.J. [26:73

secret, and Montague threatens exposure: “Reason the matter. If you

don’t my secret is worthless to me; and being so, it may as well

become the public property as mine.”

Taken together, Montague’s

and Jonas’s disparate assessments of private information constitute a

central aspect of blackmail. The blackmailer regards secrets as a

commodity, while the victim prizes secrets because they represent the

self. In Dickens’s novels, the perspective of the individual who suffers

blackmail is privileged—private information, like intellectual

property, is valuable because of its relation to the self. Blackmailers’

threats of publicity highlight their corrupt understanding of private

information, which is not a commodity to be placed on the market,

but rather a form of intellectual property that should be controlled by

the individual it concerns.

Bleak House

, Dickens again focuses on blackmail to stress

privacy’s value, and he documents the harm that occurs when others

treat one’s private information as property. In the novel’s economy,

the more private a communication, the more it is worth to other

characters, who will exploit it as a commodity. Mr. Tulkinghorn, who

slyly “carries family secrets in every limb of his body and every crease

of his dress,” particularly excels at appropriating other people’s

identities and thereby controlling them.

Most notably, he claims

ownership of Lady Dedlock’s most valuable secret—her private past.

When he blackmails her, she says “If, sir, in my knowledge of my

secret—” and he interrupts, “It is no longer your secret. Excuse me.

That is just the mistake. It is my secret . . . . If it were your secret,

Lady Dedlock, we should not be here holding this conversation.”

Lady Dedlock’s private information becomes property at the very

moment she loses control over it. Tulkinghorn redefines her life story:

what had been valuable to her as information about her private self is

now valuable to him because it gives him power over her, and he uses

it to deny her privacy and self-determination.

Ultimately, this blackmail leads to the consumption of Lady

Dedlock’s life, the narrative of which becomes public property. Her

private history comes to ground others’ reputations, as “people who

know nothing and ever did know nothing about her, think it essential

to their reputation to pretend that she is their topic too and to retail

her at second-hand with the last new word and the last new

manner.”

This publication and commodification of Lady Dedlock’s

74. D

ICKENS

supra

note 55, at 598.

75. C

HARLES

ICKENS

, B

LEAK

OUSE

176 (Penguin Books 1980) (1853).

.Id

. at 664.

.Id

. at 790.

2003] P

UBLISHING

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life constitutes such a serious invasion of privacy that, as the property

of others, she can no longer live. The loss of her control over private

information entails, quite literally, a loss of self.

In Elizabeth Gaskell’s final and unfinished novel,

Wives and

Daughters

, a pivotal invasion of privacy again positions itself at the

intersection of gossip and blackmail, and gossip compounds

blackmail’s injury. As in all of Gaskell’s novels, gossip is

predominantly a harmless staple of communal living. Anticipating

Warren and Brandeis’s description of gossip in physical terms as a

crop to be harvested,

Gaskell writes that “gossip had been [Mrs.

Goodenough’s] daily bread through her life, gossip was meat and

wine to her now.”

Aware of gossip’s prevalence, the novel’s

characters selectively guard their private lives from view. Lady

Cumnor, for instance, lets anyone read her husband’s letters, for

“[t]here was no fear of family secrets oozing out in his sprawling lines

of affection,”

but she closely guards her daughters’ letters, which

may well ooze secrets to attentive eyes. Like Warren and Brandeis

who note, “Even gossip apparently harmless, when widely and

persistently circulated, is potent for evil,”

Lady Cumnor recognizes

that gossip can function as a species of blackmail by transforming an

individual’s private information into another’s valuable property. In

the case of gossip, which is inherently communal, gain is usually social

rather than financial. Nonetheless, in

Wives and Daughters

, the gossip

of the town women complements the central blackmail plot and

threatens to ruin the heroine Molly’s reputation, which for a

Victorian woman was one of the most valuable forms of property.

As in Dickens’s novels, the blackmail plot of

Wives and

Daughters

illustrates how the relationship between privacy and

intellectual property can be perverted by the commodification of

private information. Molly’s stepsister Cynthia became engaged to

Mr. Preston at a young age, in part because she owed him money. She

now wishes to break the engagement, but Mr. Preston insists that she

is bound to him, and he threatens to publish her private letters, which

contain not only vows of love but also derisive comments about her

mother. It is precisely because these letters contain personal

information that they have value for Mr. Preston, and he treats them

as a commodity, with which he can barter. Molly demands that he

78. Warren & Brandeis,

supra

note 7,

at 196.

79. E

LIZABETH

ASKELL

, W

IVES AND

AUGHTERS

415 (Penguin Books 1996)

(1866).

.Id

. at 103.

81. Warren & Brandeis,

supra

note 7, at 196.

100 H

ASTINGS

OMM

L.J. [26:73

return Cynthia’s letters and tells him he has no right to them. He

responds, “No legal, or no moral right? which do you mean?”

Cases

such as

Pope v. Curll

and

Woolsey v. Judd

suggest that Mr. Preston

would have no legal right to publish these letters, but she steers clear

of the law and makes a moral argument that he has no right “as a

gentleman, to keep a girl’s letters when she asks for them back again,

much less to hold them over her as a threat.”

The situation becomes

still more complicated when Molly is seen alone with Mr. Preston,

and the town comes to believe

she

is carrying on a relationship with

him. Ultimately, through some complex plotting, Cynthia retrieves

and destroys her letters and the widespread rumors about Molly are

corrected. By leading us through Mr. Preston’s misevaluation and the

town’s eager gossip, Gaskell underscores the proper way to value

private information and written communications.

3. The Privilege of Communal Privacy

Blackmail depends on one individual’s having access to another’s

privacy, but Dickens and Gaskell are careful to stress that its harm

inheres in a malignant understanding rather than mere access, and

they repeatedly champion the sharing of private information in more

positive contexts. Here again, the authors take their cue from

intellectual property rights. If a potential downside of conceptualizing

private information along the lines of intellectual property is

commodification, a benefit of this model is a recognition of the

inalienable nature of both written works and privacy. Intellectual

property rights explicitly honor the author’s competing needs for

privacy and publicity, for to publish a literary work is not to divest

oneself of unique ownership of it. Dickens and Gaskell perceived

their literary works as expressions of self in which they possessed

particular rights even as these works circulated among an audience.

Similarly, they acknowledged that to share private information

with a sensitive audience must not be to lose control over it. Like a

written work, a secret can be conveyed to another while remaining in

the possession of its original owner. Both privacy and intellectual

property rights, recognizing that people exist in social networks,

accommodate the desire to protect certain information without

isolating oneself.

In Dickens’s and Gaskell’s novels, intimacy is

82. G

ASKELL

supra

note 79, at 479.

83.

84. Intellectual property rights protect expression but not underlying ideas, while the

kind of privacy Dickens and Gaskell champion protects ideas. There is, nonetheless, a

2003] P

UBLISHING

RIVACY

101

incorporated into privacy, as characters share personal information

with close friends and family members. The authors insist that that

intimacy is an aspect of privacy rather than its antithesis and that the

sharing of secrets need not erode privacy. In their fiction, characters

are respected as the authors, and therefore owners, of their private

experiences, which they can selectively publish. Personal information

remains under the control of the person it concerns even as this

information circulates among members of a group, much as

intellectual property remains under the control of its author even as it

circulates among an audience. As long as each person respects the

other’s unique interest in, and control over, personal information,

sharing secrets in intimate relationships enhances privacy’s meaning.

In both

Bleak House

and

Wives and Daughters

, the injury of

blackmail is underscored by affirmative disclosures of personal

matters. Those disclosures simultaneously enhance individual

subjectivity and interpersonal bonds. If Tulkinghorn threatens Lady

Dedlock’s privacy and identity, the narrator Esther carefully protects

her birthmother’s personal life. Esther learns about her own heritage

and Lady Dedlock’s past in a letter. Respecting the privacy of the

letter, Esther reads it only when she is “[s]afe in [her] own room,”

and she immediately burns it to prevent an accidental disclosure.

Though it concerns her own past, she regards the secret as Lady

Dedlock’s property, much as

Pope v. Curll

deemed unpublished

letters the legal property of their authors rather than recipients:

“[T]he secret I had to keep . . . was not mine, and I did not feel that I

had a right to tell it.”

Esther respects Lady Dedlock’s message as

private property that she has been privileged to see but does not own.

She does not treat the correspondence as a commodity or in any way

exercise control over its contents. Much as intellectual property

remains the inalienable property of the author even when

communicated to another, Lady Dedlock’s secret remains within her

control even though she has shared it with Esther. Because Esther

guards this private information, her shared knowledge is a comfort to

Lady Dedlock.

Similarly, in

Wives and Daughters

, privacy is not a question of

inaccessibility but one of control, and implicit contracts protect

individuals’ private lives and guarantee selective disclosure. The most

significant secret in the novel—that Osborne Hamley is married—

fundamental similarity. I discuss the distinction between ideas and expressions

infra

note 137 and accompanying text.

85. D

ICKENS

supra

note 75, at 520.

.Id

. at 525.

102 H

ASTINGS

OMM

L.J. [26:73

becomes not the gold of a blackmailer, but rather the center of an

agreement to protect privacy. While Molly is visiting Hamley Hall,

Osborne receives a letter from his wife and does not notice that Molly

is present in the room. He is devastated by the publication of this

secret to “a third person,” but Molly promises him she will never

speak of it.

She recognizes the secret as his private property and

respects his right to retain control over this personal information.

When he realizes that she will not exploit his inadvertent trust, he

casts his private information as a shared possession and tells her, “It is

a relief to think that some one else has my secret.”

Gaskell insists

that private information can be shared for the good of all and that

intimacy is often a more desirable form of privacy than solitude.

Osborne benefits from sharing his private information with a trusted

friend, and he retains his privacy, because Molly’s motives with

regard to the secret are identical to his own.

Shared privacy also proves essential in untangling the novel’s

blackmail plot. Molly intervenes on her stepsister’s behalf, and

Cynthia finds great relief in sharing her secret. If Mr. Preston’s

commodification and exploitation of Cynthia’s personal information

is a sign of his weakness, Molly’s handling of this information speaks

to her high character. Unlike Mr. Preston, who claims Cynthia’s

letters as his own property, Molly recognizes her stepsister’s secret as

Cynthia’s property to disclose or not as Cynthia chooses. Even when

her own reputation is impugned by town gossip, Molly insists that she

has no right to invade Cynthia’s privacy: “Papa, I cannot tell you all.

It is not my secret.”

She sounds much like

Bleak House

’s Esther

discussing Lady Dedlock’s secret. Indeed, Molly resembles an Esther

with more gumption. Like Esther, Molly recognizes that another’s

private information should remain within her own control.

Gaskell’s most extended meditation on the positive aspects of

sharing private information with an intimate group occurs in her

novel

Cranford

, in which she posits a communal privacy. This privacy

protects the self-determination of its members and allows them to

form close relationships through sharing, while retaining ownership of

their private information. In his foundational discussion of

eighteenth-century novels, Ian Watt argues that the “privacy of the

suburb is essentially feminine,”

and that letter writing is “the form of

personal intercourse most suited to the way of life which the suburb

87. G

ASKELL

supra

note 79, at 210.

.Id

. at 494.

.Id

. at 516.

90. W

ATT

supra

note 9, at 187.

2003] P

UBLISHING

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103

represents.”

The suburb Cranford takes these generalizations to the

extreme, for it “is in possession of the Amazons; all the holders of

houses above a certain rent, are women,” who communicate with

each other and the outside world, gendered male, largely through

written correspondence.

Letters in this novel straddle concerns of

privacy and intellectual property and reproduce in literary form

individuals’ personalities. Miss Jenkyns’s letters are “stately and

grand, like herself,” while Miss Matty’s letters are “nice, kind,

rambling.”

Moreover, Miss Matty values her family letters because

they seem to keep “the warm, living hearts that so expressed

themselves” perpetually alive, and she insists on destroying these

letters so they do not “fall into the hands of strangers.”

Nonetheless,

she shares the letters with

Cranford

’s narrator, Mary Smith, and

thereby impresses that information need not be exclusive to a single

individual to be private. By characterizing these letters as “only

interesting to those who loved the writers,”

Miss Matty offers a

communal way of valuing private information. This view is the

inverse of blackmail—whereas blackmail turns on a recognition of

and disregard for the private meaning of personal information, these

letters are precious only to someone who has access to their private

meaning.

Mary Smith’s letter to Peter Jenkyns depends on just such an

assessment of private information. She writes to Miss Matty’s long-

lost brother to inform him of his sister’s bankruptcy and carefully

protects Miss Matty’s privacy; the letter “should affect him if he were

Peter, and yet seem a mere statement of dry facts if he were a

stranger.”

The figure of speech with which Mary refers to her letter

drives home the writing’s status as an extension of the self. She notes,

“It was gone from me like life—never to be recalled. . . . [T]he little

piece of paper, but an hour ago so familiar and commonplace had set

out on its race.”

Her comment highlights the peculiar status of

intellectual property: publication sends it into the world, but it

remains intimately connected to its author, according to Mary, as a

child. Indeed, Mary’s metaphor recalls seventeenth- and eighteenth-

century copyright debates, in which a book was cast as an author’s

.Id

. at 190.

92. E

LIZABETH

ASKELL

, C

RANFORD

39 (Penguin Books 1986) (1851-53).

.Id

. at 51.

.Id

. at 85.

.Id

. at 89.

.Id

. at 180.

.Id

. at 182.

104 H

ASTINGS

OMM

L.J. [26:73

child. As Daniel Defoe wrote, “A Book is the Author’s Property, ’tis

the Child of his Inventions, the Brat of his Brain.”

Gaskell’s treatment of letters in Cranford also highlights a

noteworthy point about all forms of intellectual property: they are

unique creations of authors but are nonetheless informed by other

works. Seemingly ironically, Miss Jenkyns, whose letters Mary

describes as “like herself,” has developed her personal style by

copying the writing of Samuel Johnson. As Miss Jenkyns insists, “Dr.

Johnson’s style is a model for young beginners. . . . I have formed my

own style upon it.”

More generally, British letter-writing manuals

emphasized correspondents’ ability to express themselves naturally

and transparently, but such naturalness was actually a cultivated art

that demanded studying collections of published letters: “The skills of

private revelation and intimate conversation were learned through

the public medium of print. Many correspondents . . . shaped their

subjectivity through their letter writing, but they were able to do so

only because of the models and conventions that were publicly

available to them.”

100

Contrary to the Romantics’ claims, literature is

also never entirely original; as Northrop Frye has famously argued,

“Poetry can only be made out of other poems; novels out of other

novels.”

101

So too, the private self can only develop through social

interaction. The very fact that Miss Jenkyns’s letters do resemble her

and that subjectivity could be shaped through letter writing

underscores that subjectivity and autonomy are the products of social

relations. Individuals do not develop in isolation, but rather form the

. Quoted in

OSE

supra

note 16, at 39. Catherine Gallagher argues that alongside

of and competing with this metaphor of authorship-as-paternity was the “degradingly

female” metaphor of authorship-as-prostitution. Catherine Gallagher

, George Eliot and

Daniel Deronda

: The Prostitute and the Jewish Question

, P

OLITICS

AND

CIENCE

IN THE

INETEENTH

-C

ENTURY

OVEL

39, 40 (Ruth Bernard Yeazell ed., 1986).

Addressing this dichotomy in the seventeenth century, Harold Love writes, “[T]he modes

of reproduction characteristic of print and script pointed, at the level of metaphor, towards

a socially approved and a socially disapproved mode of procreation.” H

AROLD

OVE

ULTURE AND

OMMERCE OF

EXTS

: S

CRIBAL

UBLICATION IN

EVENTEENTH

ENTURY

NGLAND

153 (1993). Diverging from both paternity and prostitution, Mary

posits a legitimate female metaphor for authorship—the author as mother.

99. G

ASKELL

supra

note 92, at 48.

100. John Brewer,

This, That, and the Other: Public, Social, and Private in the

Seventeenth and Eighteenth Centuries

HIFTING THE

OUNDARIES

RANSFORMATION OF THE

ANGUAGES OF

UBLIC AND

RIVATE AND THE

IGHTEENTH

ENTURY

1, at 11 (Dario Castiglione & Lesley Sharpe eds., 1995).

101. N

ORTHROP

RYE

, A

NATOMY OF

RITICISM

: F

OUR

SSAYS

97 (1957).

2003] P

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self in response to others.

102

One such way people negotiate their

personalities is through public discourse and writing. The private self

depends on the public sphere of print, of articulation and

communication, to forge itself.

103

Cranford

, public writings are

incorporated into the private self, which then reproduces its thoughts

as writing.

As the private self responds to the larger community, personal

information can also be the property of a group, and Gaskell suggests

that communal privacy can be the basis for individual dignity. In

Cranford

, the very act of protecting privacy fosters intimacy, for

privacy flourishes through an unspoken agreement to protect the

dignity of each woman and the group as a whole. The gentility of the

Cranford women is a mass fiction in which they all voluntarily

participate. When Captain Brown dares to acknowledge his poverty

“not in a whisper to an intimate friend, the doors and windows being

previously closed; but in the public street! in a loud military voice!”

the women look upon this as treacherous, for they have all “tacitly

agreed” to ignore their poverty.

104

Although some instances of protecting privacy seem ridiculous,

the women’s actions more often preserve human dignity. All of the

townspeople, for instance, know about Miss Matty’s love for Mr.

Holbrook, but they allow her to believe her “effort at concealment”

has succeeded.

105

After Mary watches Miss Matty to detect signs of

this love, she feels “almost guilty of having spied too curiously into

that tender heart” and resolves “not to speak of its secrets,—hidden,

Miss Matty believed, from all the world.”

106

Because the community

does not discuss her love, Miss Matty retains control over this private

information; she can discuss it or not as she chooses. Although her

love is not secret, her friends allow her to believe it is, and this

strengthens both her sense of autonomy and the community’s

102. Object relations theory holds that the self develops through relationships with

others and stresses the early mother-child relationship. For a review of the literature, see

REENBERG

& S

TEPHEN

ITCHELL

, O

BJECT

ELATIONS IN

SYCHOANALYTIC

HEORY

(1983).

103

. See, e.g

., J

ÜRGEN

ABERMAS

, T

TRUCTURAL

RANSFORMATION OF THE

UBLIC

PHERE

: A

NQUIRY INTO A

ATEGORY OF

OURGEOIS

OCIETY

49 (Thomas

Burger trans., 1989).

104. G

ASKELL

supra

note 92, at 42.

105

.Id

. at 81.

106

.Id

. at 80.

106 H

ASTINGS

OMM

L.J. [26:73

intimacy.

107

Similarly, when Miss Matty goes bankrupt, Miss Pole calls

a private meeting of her friends, and each woman writes down how

much money she can contribute on a sealed paper, which will be

opened by Mary’s father under pledge of secrecy. This confidentiality

serves two functions: the women can give “in a secret and concealed

manner, so as not to hurt [Miss Matty’s] feelings” by making her

aware that they know of her bankruptcy, and the women also

preserve their own privacy and dignity by not sharing their financial

status with one another.

108

Each individual retains control of her

private information, and the communal arrangement secures the

utmost privacy for everyone.

What is fundamentally at stake in Gaskell’s and Dickens’s fiction

is not so much the ownership of specific information as the ownership

of the self and the chance for individuals to represent themselves as

they choose. The authors take advantage of fiction’s unique ability to

make us imaginatively experience others’ violations of privacy, and

we judge characters through their dealings with privacy. As we

encounter both positive and negative models for handling privacy

within the novels, we may ourselves take a cue for reading and choose

to align ourselves with the positive models, regarding our access to

the novel’s private information as a privilege we must respect.

IV. The Reader and the Novel’s Private Community

Of course, it seems ironic to locate privacy in the Victorian

novel, which dramatizes the private lives of characters for a mass

audience. While the personal information the novel discloses is, of

course, fictional, it is not the reality of the privacy, but rather the call

for its invasion that seems problematic. Peter Brooks maintains that

“the novel’s concern with privacy is necessarily constituted as an

invasion of privacy,” for it “can make private life the object of its

concern only through invading the private sphere by opening it up to

the irrevocable publicity of writing.”

109

If writing signals an ironic erosion of privacy, it is the act of

reading that ultimately seems to undermine the championing of

privacy within the novel, for the course of the narrative depends on

the reader’s desire to discover hidden information, and the teleology

107. D. A. Miller discusses secrecy in

David Copperfield

in related terms, maintaining

that the social function of secrecy “is not to conceal knowledge, so much as to conceal the

knowledge of knowledge.” D. A. M

ILLER

, T

OVEL AND THE

OLICE

206-7 (1988).

108. G

ASKELL

supra

note 92, at 191.

109. B

ROOKS

supra

note 47, at 30-32.

2003] P

UBLISHING

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107

of Victorian novels requires that the reader uncover all secrets in the

end. Reading well often entails the unique invasion of discovering

secrets unknown to the characters themselves. Readers, for instance,

almost inevitably understand love interests before the characters

involved. We know that David Copperfield loves Agnes before he

admits it to himself, and the same goes for Molly and Roger in

Wives

and Daughters

. The structure of the detective novel—a favorite of

nineteenth-century literary inventions—is particularly antithetical to

privacy. In

Bleak House

, for example,

readers want to uncover Lady

Dedlock’s secret and Esther’s past as much as the novel’s detectives

do, and Dickens encourages our probing by both temporarily

obstructing and finally rewarding our efforts.

Decisive moments in two other popular Victorian novels—

Charlotte Brontë’s

Shirley

and Wilkie Collins’s

The Woman in

White

—perhaps best convey the reader’s apparent invasion of

privacy. In Brontë’s novel, Louis Moore enters Shirley Keeldar’s

room when she is absent and examines her private space and

possessions. As Barbara Leah Harman argues, “Louis’s investigation

of Shirley’s private places is really a

violation

of her private places.”

110

After he inspects her things, he begins to write in his journal, and the

narrator encourages us to inspect his writing: “Come near, by all

means, reader; do not be shy: stoop over his shoulder fearlessly, and

read as he scribbles.”

111

Our bold reading mirrors his own, and just as

his investigation invades Shirley’s privacy our reading of his journal

would seem to invade Louis’s. The narrator even casts our invasion as

physical, so that it occurs on the same narrative plane as his. Ours is,

then, a double violation: we invade Shirley’s privacy with Louis,

perhaps even as we condemn his behavior, and we proceed to invade

his own privacy. Later in the novel, the narrator offers another

passage from Louis’s journal and addresses the reader directly: “Yet

again, a passage from the blank book, if you like, reader; if you don’t

like it, pass it over.”

112

This acknowledgment that we may not wish to

read the passage underscores our earlier encouraged violation, as well

as our continuing invasion of privacy, because, of course, the narrator

is not only censuring, but inciting our reading.

In Wilkie Collins’s

The Woman in White

we similarly read

extracts of Marian Halcombe’s diary and, upon reaching the end,

encounter a postscript written by the villainous Count Fosco, who, it

110. B

ARBARA

EAH

ARMAN

, T

EMININE

OLITICAL

OVEL IN

ICTORIAN

NGLAND

41 (1998).

111. C

HARLOTTE

RONTË

, S

HIRLEY

487 (Penguin Books 1985) (1849).

112

.Id

. at 580.

108 H

ASTINGS

OMM

L.J. [26:73

turns out, has been reading Marian’s diary along with us. Fosco

expresses his genuine admiration for Marian and writes, “My strict

sense of propriety restores [the diary] (by the hands of my wife) to its

place on the writer’s table.”

113

We are disturbed, I believe, both by

Fosco’s invasion of Marian’s privacy and by his hypocritical respect

for propriety.

may even feel violated by Count Fosco’s reading

over our shoulder, as it were, even though we too are reading a

private diary. How can we condemn his reading of this private

document while condoning our own? We might ask a similar question

of reading

David Copperfield

, which David presents as a personal

history we should not be seeing. The full title of the work is

The

Personal History, Experience, and Observation of David Copperfield

The Younger of Blunderstone Rookery Which He has Never Meant to

be Published on any Account

, and throughout the novel David

repeatedly refers to the privacy of his history, as when he writes,

“[T]his manuscript is intended for no eyes but mine.”

114

How, then, do

we understand our reading of this novel as something other than an

invasion of privacy?

The Victorian novel, I contend, does not present invasions of

privacy so much as it draws the reader into an inner circle of privacy

and teaches us to value the personal information of characters. The

very intimacy of reading stems from our sharing private knowledge

and our interest in characters’ welfare. We are not like Fosco,

because we do not wish to harm Marian’s sister, but instead desire her

well-being. As readers we have the firm conviction that characters,

including Marian, would willingly share their private lives with us,

because we would value them as such.

Our approach to the novel’s privacy is modeled for us by

characters, who, as I have discussed, often protect each other’s

privacy through an implicit contract. Very few secrets are known to

one person alone; rather, information is shared between characters,

such as Esther and Lady Dedlock or Cynthia and Molly. One

individual reveals a secret when she is sure that the other will keep it

private, and this information becomes a shared possession of the

characters and fosters their intimacy. Such disclosures do not threaten

privacy, for the characters attribute the value of the information to its

personal nature, rather than its commercial potential, and they

respect one another’s control. These interactions within the novel are

mirrored by the reader’s own experience with the text: a gradual

113. W

ILKIE

OLLINS

, T

OMAN IN

HITE

359 (Penguin Books 1974) (1860).

114. D

ICKENS

supra

note 58, at 563.

2003] P

UBLISHING

RIVACY

109

introduction to the private lives of characters makes us care about

and feel intimate with them, and we therefore believe that our access

does not undermine their privacy. Like individuals in the novels, we

respect characters’ control over their personal information.

There is an irony underlying our sense of these characters’ lives

as personal: “It is paradoxical that the most powerful vicarious

identification of readers with the feelings of fictional characters that

literature had seen should have been produced by exploiting the

qualities of print, the most impersonal, objective, and public of the

media of communication.”

115

It is, however, the impersonal nature of

print that allows us to lose consciousness of the artifice of writing and

to regard the book as an “extension of our personal life—a private

possession.”

116

While reading, moreover, we not only experience the private

information of characters as something valuable because of its

personal meaning, but also regard the novel as a form of intellectual

property related to its author’s personality, rather than a commodity.

We come to develop a relationship with this author, who in the

Victorian novel, often dramatizes himself or herself and addresses us

directly. This personalization of the reader’s relationship with the

author is also rather ironic, for it occurred as novels were being mass

produced for an ever-expanding audience. Over the course of the

nineteenth century, novels became deeply embedded in the market

economy through serial production, but authors partially defied the

market’s burgeoning commodifying power by understanding the

value of their works in personal terms. To resist commodification,

authors not only advocated on behalf of intellectual property rights as

personal interests, but also strove to cast their relationships with

readers as intimate. Acutely conscious of the tension between what

Pierre Bourdieu has labeled material exchange and symbolic

exchange, circulation and communication,

117

authors recognized their

novels as material goods circulating in the market, but they also

regarded them as a communication between themselves and their

readers. It is the communicative aspect of their creations that they

chose to emphasize. Precisely because their novels were being mass

produced, Victorian authors wrote their own personalities into the

text and engaged directly with the reader, whom they apostrophized

as an individual. As Thackeray wrote of Dickens, there is “a

115. W

ATT

supra

note 9, at 206.

116

.Id

. at 198.

117. P

IERRE

OURDIEU

, O

UTLINE OF A

HEORY OF

RACTICE

(Richard Nice trans.,

1997).

110 H

ASTINGS

OMM

L.J. [26:73

communion between the writer and the public . . . something

continual, confidential, something like personal affection.”

118

Mary

Poovey similarly suggests that in

David Copperfield,

the protagonist’s

authorship seems to be “simultaneously an expression of self and a

gift to others.”

119

By treating their novels as works that had value

independent of the market, authors both defined intellectual property

as a unique, personal kind of property and increased their market

share.

Dickens’s idea for a periodical that he would call “The Cricket”

exemplifies this highly productive, if tenuous, relationship between

mass production and personalization. He wrote to John Forster that

he would be like a cricket chirping on family hearths: “I would at

once sit down upon their very hobs and take a personal and

confidential position with them which should separate me, instantly,

from all other periodicals published.”

120

Dickens’s novels further

reflect this desired mass intimacy with readers, for he begins each

with a preface that establishes a confidential relationship between

author and audience. In

Martin Chuzzlewit

, Dickens speaks of this

ritual as something particularly meaningful to him, writing that he

includes the preface “more because I am unwilling to depart from any

custom which has become endeared to me by having prevailed

between myself and my readers on former occasions of the same kind,

than because I have anything particular to say.”

121

Throughout the

novel, he continues to address his readers directly. The fact that he

calls attention to our presence means that we do not feel we are

invading the private realm within the novel. We are not snooping or

spying, like Louis Moore or Count Fosco, because the author is aware

of our presence, and perhaps by implication the characters are as

well.

Dombey and Son

, moreover, Dickens implies that not all

publications of private information are violations. Writing about his

1842 visit to the U.S., he had complained about newspapers “pulling

off the roofs of private houses, as the Halting Devil did in Spain;

pimping and pandering for all degrees of vicious taste.”

122

But in

Dombey and Son

, he associates his own writing with an innocuous

version of these invasions of privacy and calls “for a good spirit who

would take the house-tops off, with a more potent and benignant

118

. Quoted in

OOVEY

, U

NEVEN

EVELOPMENTS

supra

note 70, at 104.

119

.Id

. at 101.

120. 4 T

ETTERS OF

HARLES

ICKENS

supra

note 53,

at 328 (July 1845).

121. D

ICKENS

supra

note 55, at 5.

122. D

ICKENS

supra

note 61, at 210.

2003] P

UBLISHING

RIVACY

111

hand than the lame demon in the tale.”

123

Taking off house-tops is not

only the Halting Devil’s project, but Dickens’s own, yet he insists that

his novelistic depictions of the private sphere are different from those

of the newspapers because of his “benignant hand.” Through

Dickens’s authorial role, the reader, too, assumes a benevolent stance

toward the characters and their private information, and this

orientation casts our reading as a welcomed sharing, rather than an

invasion of privacy.

Bleak House

Esther herself, in her dual role as narrator and

character, perceives the reader as a friend, and her highly self-

conscious narration repeatedly appeals to our sympathy. Her first

words are, “I have a great deal of difficulty in beginning to write my

portion of these pages, for I know I am not clever,” and she proceeds

to discuss her childhood doll, to whom she told all of her secrets.

124

associating readers with her doll, she makes us intimate friends, an

audience for her secrets. In her closing words, Esther bids her

“unknown friend,” the reader, goodbye, “Not without much dear

remembrance on my side. Not without some, I hope, on his or

hers.”

125

Because she specifically addresses us and prepares her story

for our eyes, we feel secure that we are not invading her privacy.

Dickens’s novel stresses that information can remain private, through

the intimate relationship among character, author, and reader, even

as it is published.

Somewhat curiously, the novel that insists we are invading its

characters’ privacy is also the one in which Dickens’s communal

model for privacy is most apparent:

David Copperfield

. Despite

David’s claims that his manuscript is for his eyes only, he addresses us

directly throughout his work and invokes our privileged

understanding: “The reader now understands, as well as I do, what I

was when I came to that point of my youthful history to which I am

now coming again.”

126

So too, the actual author of David’s life story

welcomes the reader as a close friend. In the preface to the First

Edition, Dickens writes that his interest in the novel is so great that

he is in danger of “wearying the reader whom I love, with personal

confidences, and private emotions.”

127

In his preface to a later edition

123. C

HARLES

ICKENS

, D

OMBEY AND

540 (Oxford Univ. Press 1999) (1846-

48).

124. D

ICKENS

supra

note 75, at 30.

125

.Id

. at 877.

126. D

ICKENS

supra

note 58, at 54.

127. D

ICKENS

supra

note 58,

Preface to the First Edition

available at

http://www.bibliomania.com/0/0/19/1992/26457/1.html (last accessed Jan. 27, 2004).

112 H

ASTINGS

OMM

L.J. [26:73

he adds, “I can only take the reader into one confidence more. Of all

my books, I like this the best.”

128

With this admission, Dickens

demands our special consideration of his novel according to the

implicit contract governing our reading. Through his prefaces and

David’s addresses, the foreboding portion of the title, “

Which He has

Never Meant to be Published on any Account

,” becomes not a sign of

the reader’s violation but rather an injunction to share the novel’s

respect for privacy. We have been taken into both David’s and

Dickens’s confidences, and this leads us to see the book as an

intimate confession, rather than a story we are not meant to read.

A communal privacy, in which readers share and respect the

secrets of characters, is still more apparent in Gaskell’s novels. The

narrator of

Mary Barton

casts herself as an active “I” within the text;

she tells us that she was not at Jem’s trial, and of legal summonses

writes, “Many people have a dread of those mysterious pieces of

parchment. I am one. Mary was another.”

129

By repeatedly addressing

the reader in the second person, she draws us onto the narrative plane

of the fiction and positions us as her friend and correspondent. As we

read, we experience the narrator as a vivid, personal presence, and we

regard the novel as a personal communication between ourselves and

this embodied writer, who holds a pen and creates the text we are

reading.

130

Gaskell advanced such a personal relationship with the

reader not only within the novel, but also in her own correspondence.

In one letter, she declared, “Do you think I cd say or write in a letter

(except one that I was sure wd be regarded as private by some dear

friend) what I have said both in MB [

Mary Barton

] &

Ruth

? It may

seem strange & I can’t myself account for it,—but it

so.”

131

Her

ability to address private subjects in her novels could, of course, have

followed from the distance between herself and the reader, as well as

the possible distance between herself and her narrative voice. But the

comment also implies that her novels are, in some essential sense,

private communications. She would not share the information in a

letter that would be public, but she specifically constructs her

relationship with her readers so that we resemble intimate friends.

Our reading of her novels is therefore markedly different from a

stranger’s seeing a personal letter. Because Gaskell establishes

128. D

ICKENS

supra

note 58,

Preface to the “Charles Dickens” Edition

available at

http://www.bibliomania.com/0/0/19/1992/26458/1.html.

129. G

ASKELL

supra

note 63, at 255.

130

.See

OBYN

ARHOL

, G

ENDERED

NTERVENTIONS

: N

ARRATIVE

ISCOURSE IN

THE

ICTORIAN

OVEL

56, 65 (1989).

131. T

ETTERS OF

. G

ASKELL

supra

note 66, at 255-56 (Dec. 6, 1853).

2003] P

UBLISHING

RIVACY

113

intimacy, she trusts that her relationship with us will be one of mutual

respect and concern.

Cranford

is still more intimate a communication than

Mary

Barton

. The entire novel is written as a letter by Mary Smith to a

London resident, and the letters within the novel are therefore

microcosms of the novel itself. Gaskell’s description of Mary’s letter

to Peter powerfully documents the process of writing and publishing a

novel for a possibly unreceptive audience and underscores the kind of

audience Gaskell seeks in us.

132

As readers, we must exhibit the

respect for the novel and its characters that these characters show for

each other’s letters. When Miss Matty and Mary read and burn the

family epistles so that they do not fall into the hands of strangers, we

become a part of their community of readers, rather than the

strangers from whom the correspondence must be hidden. Similarly,

much as Mary’s letter to Peter protects the privacy of all involved and

Miss Matty’s family’s letters are interesting only to those who loved

the writers,

Cranford

itself is a bundle of stories, largely lacking plot,

and only of interest to those who care about the characters. Through

the novel’s discussions of letters, Gaskell indicates the proper manner

of reading to her audience:

Cranford

is a letter that allows author and

reader to enter into an intimate private community.

133

As this suggests, we learn from

Cranford

’s characters how to

relate to the novel’s private information. When Mary feels guilty for

spying into Miss Matty’s heart, she resolves not to discuss or ask

about her past love; although she knows Miss Matty’s secret, she is

not free to violate her privacy. We must similarly respect the privacy

of information we encounter in the novel and not pry too much. As

Hilary Schor argues, “Not only does Miss Matty’s ‘affection’ stay a

secret but narrative knowledge is secret; Mary Smith is a closet

narrator, and the role of literature is to present secrets as somehow

intact in their secrecy.”

134

Of course, our lack of respect for characters’

privacy would not have the same consequences as other characters’

violations of trust. By temporarily immersing us within a fictional

132

.See

CHOR

supra

note 66, at 116.

133. There is, significantly, a sense in which

Cranford

was more than just a novel for

Gaskell, who described it as “the only one of my books that I can read again.” T

ETTERS OF

. G

ASKELL

supra

note 66, at 747 (Feb. 1865). She made repeated

references in her letters to life itself being like a story from

Cranford

; for example, she told

Eliza Fox about a deal she got on ribbons and declared, “‘Elegant Economy,’ as

say in

Cranford.”

. at 174 (Dec. 1851). Similarly, she told John Forster “a Cranfordism” about

an old woman who said she could not spell since she lost her teeth.

Id.

at 290 (May 17,

1854).

134. S

CHOR

supra

note 66, at 101.

114 H

ASTINGS

OMM

L.J. [26:73

community, however, the novel illuminates private relations in a

particularly valuable way. Our imaginative engagement with

characters’ personal lives provides a vivid model for actual

interactions and shows us what is at stake in individuals’ control over

private information.

Like Mary Smith in

Cranford

, Gaskell herself is both character

and narrator in

The Life of Charlotte Brontë

, and this creates a strong

sense of community with the reader. She enhances this personal

relationship by revealing her anxieties about publishing private

information, such as details of Brontë’s married life, which is

“considered by some, at first sight, of too private a nature for

publication.”

135

Despite drawing our attention to a possible invasion

of privacy, Gaskell’s very anxiety makes us respect her disclosures as

private; we do not feel that she is violating Brontë’s privacy so much

as communicating sensitive information to an intimate circle. At the

end of the biography, Gaskell explicitly turns “from the critical,

unsympathetic public” and commits the memory of Brontë to the

“larger and more solemn public.”

136

It is curious that Gaskell casts her

sympathetic readership as the “larger” public, for we might expect it

to be the smaller circle. This, however, draws attention to a

fundamental aspect of reading itself: the intimacy that emerges

between author and reader. Gaskell is confident that the very nature

of reading will lead the majority of her readers to actively engage with

Brontë’s private life and respect her privacy, and her final statement

serves as an appeal and injunction for readers to recognize themselves

as part of a private community that is privileged to access Brontë’s

private life.

The way in which the reader of Gaskell’s and Dickens’s novels

has access to private information while not being in control of it

reflects not only the personal relationship that authors establish

among themselves, their characters, and their readers, but also a

central aspect of intellectual property. Unlike other forms of

property, which can be appropriated only through a specific transfer,

such as a sale or theft, intellectual property can belong to the author

while also being imaginatively appropriated by the reader.

137

Indeed,

135. G

ASKELL

supra

note 68, at 397.

136

.Id

. at 429.

137. Brook Thomas discusses the two ways to possess a work of art: “On the one hand,

someone can hold legal title to it and copyright the earning power brought about by its

publication. On the other, someone with no legal claim at all can ‘possess’ a work through

an imaginative act of appropriation.” B

ROOK

HOMAS

, A

MERICAN

ITERARY

EALISM

AND THE

AILED

ROMISE OF

ONTRACT

79 (1997).

2003] P

UBLISHING

RIVACY

115

intellectual property laws prohibit readers from copying works or

using the author’s expressions as their own, but readers are welcome

to appropriate the ideas within books, and this is precisely what it

means to be a good reader. Readers share the novel’s ideas with the

author, but the author retains control over the expression of these

ideas. This has been a consistent facet of intellectual property for

centuries; in the eighteenth century, distinctions were already drawn

between ideas and expression. Echoing Justice Hardwick’s separation

of material and immaterial aspects of a letter in

Pope v. Curll

, Fichte

wrote that the material book belongs to the reader upon purchase,

while the form in which ideas are presented remains the property of

the author; and he went a step further than Hardwick, declaring ideas

the common property of author and reader.

138

The ideas we appropriate through the act of reading, moreover,

become incorporated into our own private selves, so that the

intellectual property of others becomes a part of our subjectivity.

George Eliot stressed the particularly influential nature of literary

texts when she declared that humans are “imitative beings. We

cannot, at least those who ever read to any purpose at all, . . . help

being modified by the ideas that pass through our minds.”

139

As with

letters in

Cranford

, then, the very subjectivity of readers is informed

by the writings of others. Dickens acknowledges this relationship in

David Copperfield

when David discusses his library and insists that he

has been shaped by

Tom Jones

Don Quixote

, and

Robinson Crusoe

Through an act of intellectual appropriation, he has made these

books both the shared property of himself and their authors and a

part of his private self, which he now pours into his manuscript. By

reading

David Copperfield

, we enter David’s private world and in

turn incorporate his ideas into our own subjectivity. As Dickens’s

novel joins the other works of David’s library on our bookshelves,

David Copperfield joins these eponymous heroes in our

consciousness.

V. Conclusion

Today, concerns about privacy are again prevalent as new

technologies threaten our ability to control information about

ourselves. What mass publication and urbanization were to the

Victorians, it seems, computer databases and Cyberspace have

138

.See

OODMANSEE

, T

UTHOR

, A

AND THE

ARKET

: R

EREADING THE

ISTORY OF

ESTHETICS

51 (1994).

139. 1 T

EORGE

LIOT

ETTERS

23 (Gordon Haight ed., 1954-78).

116 H

ASTINGS

OMM

L.J. [26:73

become to us. These new “technologies of the self”

140

again have the

paradoxical effect of both enhancing privacy and facilitating invasions

of this privacy, and our false sense of security in private information

makes invasions all the more troublesome.

As invasions of privacy have called attention to the importance

of private information for both the autonomous self and intimate

relationships, a number of legal scholars have suggested treating

private information as a form of intellectual property.

141

Many effects

of this proposal would be positive; for example, property rights would

recognize the individual’s sense of ownership of personal information

and also accommodate people’s desires for differing degrees of

privacy. Interestingly, both proponents and detractors of this proposal

highlight its commodification of information: advocates argue that

property rights will enable individuals to control their personal

information,

142

while critics insist that privacy should not be

commodified.

143

It is at this juncture, I believe, that the Victorian novel’s

treatment of privacy and intellectual property is particularly

informative. Victorian authors use intellectual property as a model

for informational privacy precisely because it offers control without

necessarily entailing commodification. Dickens’s and Gaskell’s novels

stress that the value of intellectual property inheres in the author’s

self-expression and that the right to control this property stems from

its link to the self. Similarly, in their novels, characters must retain

control over their private information in order to resist

commodification by others, and, as with intellectual property, the

right to control this information derives from its close relationship to

the self. By using intellectual property as a model for private

information, Dickens and Gaskell explore how individuals’ control

140. Brewer,

supra

note 100, at 17.

141.

See

supra

note 3.

142.

See, e.g

., Kang,

supra

note 3; Laudon,

supra

note 5; Murphy,

supra

note 3;

Samuelson,

supra

note 6, at 1134-35.

143.

See, e.g

Simon G. Davies,

Re-engineering the Right to Privacy: How Privacy Has

Been Transformed from a Right to a Commodity

ECHNOLOGY

& P

RIVACY

: T

ANDSCAPE

125 (Philip E. Agre & Marc Rotenberg eds., 1997), at 161 (“The process of

commodification [of private data] is inimical to privacy”); Jessica Litman,

Information

Privacy/Information Property

. 52 S

TAN

. L. R

. 1283 (2000) (concluding that a property

rights approach would in fact encourage the market in personal data rather than

constraining it). A necessary corollary of treating personal information as property is that

others are prohibited from speaking about an individual, and several critics have drawn

attention to the First-Amendment implications of such a proposal.

See, e.g

., Eugene

Volokh,

Freedom of Speech and Information Privacy: The Troubling Implications of a

Right to Stop People from Speaking About You

, 52 S

TAN

. L. R

. 1049, 1113 (2000).

2003] P

UBLISHING

RIVACY

117

over their personal information can create a robust sense of privacy

and enhance both self-determination and intimacy.

By contrast, most contemporary proposals that advocate treating

private information as a form of intellectual property nonetheless cast

privacy as a commodity. In their initial incarnation, intellectual

property rights protected not the author, but rather booksellers and

stationers—the closest thing early modern England had to

corporations. In the eighteenth and nineteenth centuries, several

intellectual property cases and statutes acknowledged the intimate

connection of authors to their works and relocated property interests

in the self-expression of these authors. Despite the much-touted

“death of the Author”

144

in recent years, Anglo-American law

continues to recognize authors as the creators and owners of unique

works. What has changed, however, is that an author is as likely to be

a corporation as an individual, and forms of intellectual property are

widely regarded as commodities rather than expressions of authors’

selves.

145

Today companies predominantly exercise intellectual

property rights as any other property right. Lawrence Lessig argues

that corporations are over-served by our modern system, and he

descries the bloating of intellectual property law; focusing on the

Internet’s transition from an open forum for ideas into a mechanism

protecting corporate interests, he argues for a return to traditional

understandings of copyright that balanced the rights of the public to

access works with the rights of individuals to control their creations.

146

The Victorian novel offers readers just such a model of the organic

connections among author, creation, and audience.

A reconsideration of intellectual property rights that emphasizes

the author’s close relationship to the work would also usefully inform

contemporary debates about privacy rights. Indeed, Victorian

authors’ understandings of copyright, which relied on the work’s

connection to the self, are more conducive to protecting privacy rights

144. Roland Barthes has famously argued that “the birth of the reader must be at the

cost of the death of the Author.” Roland Barthes,

The Death of the Author

, in I

MAGE

USIC

, T

EXT

142, 148

(Stephen Heath trans., 1978). Michel Foucault maintains that “the

author does not precede the works; he is a certain functional principle by which, in our

culture, one limits, excludes, and chooses.” Michel Foucault,

What is an Author?

, in T

OUCAULT

EADER

101, 118-119 (Paul Rabinow ed., 1984).

145

. See, e.g

., Catharine Fisk,

Authors at Work: The Origins of the Work-for-Hire

Doctrine

, 15 Y

ALE

J. L. & H

UMAN

. 1, 1 (2003) (arguing that the author “has been

subsumed into the identity of his corporate employer. His disappearance is by now almost

complete. Although he has gone on writing, the corporation has become the author of his

oeuvre”).

146.

See

Lawrence

ESSIG

, T

UTURE OF

DEAS

: T

ATE OF THE

OMMONS IN

ONNECTED

ORLD

(2001).

118 H

ASTINGS

OMM

L.J. [26:73

than current understandings. Rather than accept the severance of

self-expression and control, we should regard the right to control self-

expression and private information as stemming from their ties to the

autonomous self. When we value private information as a commodity,

we reinforce corporations’ usurpations of personal data as property

and overlook what is truly important about protecting private

information. As readers of Victorian novels understand, people must

be able to control their personal information because what is

ultimately at stake is not this information alone, but the integrity of

the self.