As a new copyright reform movement gains momentum, and international treaties propose to “normalize” copyright laws globally, it is amazing to see how history does repeat itself.
In his fascinating new book, Without Copyrights (Oxford Univ. Press), University of Tulsa law professor Robert Spoo examines a little-known chapter in our cultural history—how 19th- and early 20th-century U.S. copyright laws created a vast public domain upon which our literary culture and modern publishing industry was built.
Because foreign works in this period were denied U.S. copyrights—meaning any publisher could simply reprint and sell them—the American publishing industry was built more or less on “lawful” piracy. But, Spoo notes, while British writers like Dickens and James Joyce chafed over being denied protections—and royalties—from U.S. editions of their work, piracy wasn’t all bad. In fact, it enabled a literacy movement to take root, a reading culture that could never have happened otherwise—and that public domain–driven effort laid the foundation for an American creative economy that now leads the world.
PW caught up with Spoo to talk about copyright, then and now.
Your book really centers on our longstanding conflicted relationship with so-called piracy. Is it fair to say that a good portion of the American publishing industry of today was built on a public domain that others considered blatant piracy?
Certainly, many major American publishers of the 19th century built their market dominance through the exploitation of uncopyrighted foreign works, and, yes, what a boon U.S. copyright law was to those firms. It gave them access to a remarkable free resource: well-known authors who had already proven their popularity abroad, and whose writings came to American shores with free advance publicity generated by their success. While American publishers claimed they were only doing what U.S. copyright law permitted them to do, foreign authors and publishers roundly accused them of being “pirates”—or, at best, of immorally benefiting from a system that proudly flew the skull and crossbones.
Some of the more respectable American firms tried to dodge the piracy label by engaging in “trade courtesy” and paying foreign authors honoraria [not legally required by U.S. law]. But many American publishers—particularly new startups and small firms—simply reprinted foreign works without even a token payment. There’s no doubt that what we might call “lawful” piracy helped build the fortunes of many American publishers. It also helped sustain the operations of American typesetters, printers, and bookbinders. But crucially, it also created more literature at a time when literacy was beginning to soar in the United States. It’s not too much to say that America was dependent on lawful piracy well into the 20th century. But as we accuse other developing nations of not protecting U.S. intellectual property, we should also remember how that practice played a crucial role in our cultural development and our intellectual sustenance.
The publishing industry is currently embroiled in a high-profile collusion case—and in your book, you show that the industry actually has quite a storied history of collusion. Can you talk more about the “trade courtesy” that publishers developed?
To me, it’s fascinating in the 21st century to see publishers accused by the Department of Justice of colluding to fix the price of e-books, because this is exactly what major American publishers were doing for much of the 19th century. The difference is that today’s digital publishers are focused on maximizing profits from copyrighted works, whereas American publishers in the 1800s were concerned with protecting their markets for thousands of uncopyrighted books that were being produced abroad every year—books by Charles Dickens, Sir Walter Scott, Elizabeth Barrett Browning, George Eliot, to name just a few.
American publishers realized that engaging in a feeding frenzy for every Dickens or Browning title would drive the prices of those books down, thus making it unprofitable to exploit the American public domain. So the major publishers in New York and Philadelphia developed a system where the first publisher to announce that it was issuing a new foreign work—sometimes in the pages of Publishers Weekly—enjoyed exclusive “courtesy” rights to that work in the United States. These courtesy rights imitated copyrights. They were not recognized by any court—rather, they constituted an informal, norms-based system that was adhered to by the dozen or so major publishers and other aspiring firms.
This collusive dividing up of the public domain was anticompetitive, of course—it allowed the major publishers effectively to fix the prices of otherwise freely available foreign books.
The book also recalled for me the recent Kirtsaeng case before the Supreme Court. Notably, for a good part of the 20th century, books were required to be manufactured domestically to qualify for a copyright. How and why did that begin to change?
The Supreme Court in Kirtsaeng removed a geographical fetish from U.S. copyright law. But American copyright law has a long history of territoriality, the most glaring example of which is the “manufacturing clause” you refer to, which from 1891 until the 1950s required foreign authors to have their works typeset, and as of 1909, printed and bound in the United States if they wished to enjoy U.S. copyright protection. The undisguised legislative purpose was to protect American book manufacturers, and by extension American publishers, from foreign competition. It was a win-win for American industries: if a foreign author complied with the manufacturing clause, U.S. book manufacturers would benefit. If an author failed to comply with the clause, American publishers could freely reissue the book, and American book manufacturers would again benefit.
As you might expect, many foreign authors—especially new, experimental, or controversial ones—had great difficulty getting their works reset and reprinted in the United States in time to satisfy the manufacturing clause, and so they lost their U.S. copyrights. The story of transatlantic modernism—the story I tell in my book—is filled with examples of lost U.S. copyrights and authors’ desperate strategies for holding on to some piece of the American market.
One of the many modernist writers famously infuriated by U.S. copyright policy was the poet Ezra Pound—so much so, he even proposed his own statute.
Ezra Pound was passionate about breaking down barriers to the international communication of ideas. At the same time, he hated literary piracy in any form and denounced U.S. copyright law for the way it encouraged the lawful piracy of foreign works. This led to a fascinating tension in his thinking, and in 1918 he proposed a new law that, on one hand, would establish a perpetual copyright for authors and, on the other, required authors and their heirs to keep works in print throughout the world, upon pain of losing some of their legal rights.
Pound was caught between two commitments: protecting authors’ rights and encouraging worldwide dissemination of literature. His proposed statute, fantastic as it was in some respects, was a sincere attempt to serve both causes. It addressed a contradiction that we encounter today in our digital culture: we have the means of communicating ideas throughout the world, but inconsistent international copyright laws inhibit the lawful exercise of that ability. Pound saw a similar problem in 1918, and offered his services as a volunteer legislator.
And of course, in any era, copyright lawyers always seem to find work. The centerpiece of the book is James Joyce’s lawsuit against publisher Samuel Roth.
James Joyce was one of the many foreign-based authors who lost their U.S. copyrights as a result of the stringent manufacturing clause. Joyce knew he had a major market for Ulysses in the United States, but that market was being eroded by Samuel Roth, a New York publisher, who in 1926 began reprinting installments of Ulysses in one of his magazines, without permission. But Roth was doing nothing wrong as far as U.S. copyright law was concerned. So Joyce’s New York lawyers sued him on the clever theory that he had been misappropriating Joyce’s name for commercial purposes. It was a questionable basis for a lawsuit, but Joyce’s attorneys did manage to get Roth to agree to stop using the author’s name in the future—although it didn’t take Roth long to break his promise.
Important as the lawsuit was for Joyce, and modernism, it actually had little impact on American law. But the strategy behind the lawsuit is one that is increasingly familiar today. In effect, if a work is unprotected by copyright, the next best thing is to try to surround it with other legal protections: trademark, unfair competition, publicity rights, contract, or some other surrogate scheme. Many of us look forward to the day when U.S. copyrights finally expire on important novels, poems, plays, and films created during the first half of the 20th century. We need to be prepared, however, for noncopyright theories of continuing protection, which will inevitably be advanced—and are already being advanced—by resourceful lawyers. Joyce was an early harbinger of authors without copyrights clinging to protection by other means.
With copyright reform gaining momentum, can you talk a little about the importance—and the evolution of—the public domain?
One thing I’ve come to realize is that there is no single public domain—the public domain is always local, defined by geography, history, and politics. The world contains many national public domains, which often conflict with each other as a result of divergent national copyright laws. In one country, a work might have entered the public domain 20 years ago, while in another the same work might be protected for 20 years to come. In my book I call this a tragedy of the uncoordinated global commons, because the lack of a unified public domain impedes the lawful worldwide dissemination of older works that digital technologies now make possible.
But even the public domain of a single country changes over time. The American public domain, which is my focus, was very different 150 years ago from what it is today. Until the early to mid-20th century, U.S. copyright law intentionally withheld protection from most works by foreign authors, creating a public domain that was viewed by American publishers as an abundant natural resource, a reservoir of freely available international talent.
U.S. copyright law has since come to protect most foreign authors’ works. What changed between the 19th century and today? The United States is now a net exporter of intellectual property, whereas in the 19th century, America was a developing nation, dependent on the literary and artistic products of Old World countries. Once the balance of cultural trade shifted, the United States was ready to protect foreign works, in the hope that its own authors would gain better protection abroad.
Today, with copyrights becoming longer and stronger than ever before, the American public domain is a shrinking commons, or at least a stagnant one; some lawmakers and corporate representatives have questioned whether the public domain should exist at all. One thing is certain: the public domain has always been a battleground.
Any impressions of how difficult you expect copyright reform be, especially now that we are talking about rights that can last for centuries and exist in a global fashion, thanks to the Internet?
Digital technologies could be the circulatory system for a truly unified global public domain—were it not for the tragic arteriosclerosis that international laws currently create. But digital also poses its own danger to the public domain because it has come to embody a legal life and logic of its own, apart from copyright law. The game of copyright as it has been played for centuries now has a new superimposed set of legal and technical rules that specifically protect encryption and related technologies, and that give enormous power to producers who use licenses, contracts, shrink-wrap and click-on agreements to buttress their already strong copyrights.
Think of these overlapping protections as a walnut: an edible kernel enclosed within a hard shell, which is in turn encased within a soft green husk. The kernel is the author’s work, protected by the copyright law with its rules against unauthorized copying, adapting, and distributing but also with its exceptions for fair use, fair dealing, and unprotected ideas and facts. The hard shell is the emergent anticircumvention laws and technologies that forbid unauthorized digital access to the copyrighted kernel. Finally, the outermost green husk is the system of contracts and licenses that lie atop both the copyrighted kernel and the digital shell. These added legal layers make it difficult for unauthorized users to exercise their fair-use privilege and other traditional exemptions created by copyright law: the kernel is inconsistent with its outer layers. In fact, when copyright protection for the kernel finally expires, the digital and contractual layers could still operate to inhibit access to the now public-domain meat of the walnut.
Are there any lessons you learned in writing this book that might be helpful as we begin rethinking the future of copyright?
Maybe the biggest lesson is that we must keep copyright in balance, or we will lose the benefits of both copyright and the public domain. For a century after 1790, and even beyond, the American public domain was bloated with unprotected foreign materials. While I can’t help feeling affection for that teeming commons and its disseminative possibilities, I recognize that it was unfair to foreign authors and created stark asymmetries for transatlantic publishing. But the answer to a lopsided public domain is not to commit the equal and opposite error of overprotecting creative works. When we do that, we dry up the commons as a resource for later authors and new copyrights.
Legislators should realize that harmonizing the world’s public domains is just as important as harmonizing international copyright laws—it is not the same thing. In recent decades, we have overinvested in copyrights and underinvested in the commons. When lawmakers focus chiefly on strengthening the rights of copyright owners, they forget that copyrights are, classically, a means of stimulating creativity and getting more works into the cultural sphere.