Copyright

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COPYRIGHT

Copyright has been a source of contention in the United States nearly from the moment the first law went into effect in 1791. One of the primary sources for this ongoing debate is the constitutional amendment authorizing the law. The framers called for copyright "to promote the Progress of Science and the useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries" (Leaffer, p. 6). The language appears to grant primacy to the public welfare, "the Progress of Science and the useful Arts," over the rights of the individual creator. This has led to an ongoing struggle between those who champion the literary property rights of the individual and proponents of the "public good" who call for a more narrowly defined law of shorter duration.

Subsequent legislation and jurisprudence have addressed numerous questions emerging from the expansion of print culture in the United States, including the precise length of the "limited Times" of copyrights, the exact nature of the works that are protected, and whether or not the law should extend to cover the works of creators from other nations. While arguments regarding different facets of copyright continue in the early twenty-first century, public debate and activism were particularly prominent in the late nineteenth century as authors, printers, publishers, and readers struggled over the creation of an "international copyright law," a law that would protect the works of writers from abroad. Proponents of such a law argued that it was both a matter of justice and of encouraging the profession of authorship in the United States by leveling the playing field. This could only happen, they argued, if publishers were discouraged from reprinting popular foreign novels without payment or permission. Opponents claimed that it would limit poor readers' access to inexpensive texts and hurt American book manufacturing, all to serve the financial interests of coddled British writers.

AFTER THE WAR: THE REEMERGENCE OF THE COPYRIGHT BATTLE

Various pieces of copyright legislation had been debated and enacted in Congress or sent to an early grave in committee throughout the first half of the nineteenth century, but the issue largely disappeared as the nation grappled with the upheaval of the Civil War. Not long after the conclusion of the war, however, copyright once again emerged as a topic of debate. A number of senators presented petitions and called for the consideration of the subject. The rhetoric of the public debate turned heated with the publication of a second edition of an influential tract, Letters on International Copyright (1868). Its author, a prominent publisher named Henry C. Carey (1793–1879), took aim at legislation granting rights to foreign writers while simultaneously criticizing American writers' pursuit of stronger laws for their own works. In his new preface, Carey described the matter as a conflict between the monopolistic desires of a few authors and the democratic interests of the American public: "On the one side, there will be found a few thousand persons interested in maintaining the monopolies that had been granted to authors and publishers, foreign and domestic. On the other, sixty or eighty millions, tired of taxation and determined that books shall be more cheaply furnished" (p. 14). Carey seems to have rereleased his book in order to turn the tide against international copyright once again, for that same year the Committee on the Library in the House of Representatives produced a report favoring the creation of such a law. While the report claimed that it would be "an act of national justice and honor" (U.S. Congress, U.S. House, Committee on the Library, p. 1), Congress took no action.

Despite this setback, authors did gain a victory in 1870 with the passage of a bill granting them copyrights for translations of their work and for dramatic adaptations. As such a law would suggest, the exact nature of literary property was still a source of contention. Authors and their advocates tried to argue that texts were like any other piece of property. In a response to Carey's Letters, Stevenson Archer, a representative from Maryland, published a speech he gave on international copyright in 1872. As he stated, "The simple truth is, the author has a right, an absolute right, in his books, precisely such as he has in his house or his land" (p. 9). While proponents of copyright had made similar arguments for many years, they never gained much traction during the nineteenth century. Indeed, in spite of its supporters' best efforts, the international copyright bill proposed in 1872 fared no better than the earlier measures, this time even receiving an unfavorable report from the Joint Committee on the Library in 1873. In the years following the Civil War, the battle over copyright would continue to preoccupy Congress and the nation's writers and publishers.

"PIRATES"

If authors were considered either victims or greedy monopolists, then the publishers who took advantage of the gaps in American copyright law were either the heroes of the underprivileged reading class or the immoral "pirates" of the book trade, seizing property that belonged to others. Throughout the nineteenth century, American writers bemoaned the fact that they were forced to compete with cheap reprints of well-known British authors. First Sir Walter Scott and then Charles Dickens became emblematic of the flood of foreign novels barring the progress of American literature. As the century progressed, the "piracy" of texts—reprinting them without permission from or compensation for the authors—was taking place on both sides of the Atlantic. While this began with works by James Fenimore Cooper and greatly accelerated with the success of Harriet Beecher Stowe's Uncle Tom's Cabin (1852), it was a considerable trade by the 1880s, and readers in England were enjoying inexpensive editions of popular American works. Unlike the United States, Great Britain did allow foreign authors to secure copyright, but it required that authors be on British soil when the work was first published in the country. While authors such as Mark Twain (1835–1910) and Harriet Beecher Stowe (1811–1896) spent time traveling to Canada to meet this requirement, it posed a considerable financial and logistical burden. As many authors pointed out, it also made it nearly impossible for an unknown writer to secure copyright for a first work. As difficult as this hurdle was, British authors had no available option in the United States, and there were several American publishers willing to take advantage of this fact.

Of course, whether or not this constituted any sort of "piracy" depended on where one stood. In testimony before Congress in 1886, one publisher who reprinted the Encyclopaedia Britannica proudly declared of his firm, "We are what these gentlemen call 'pirates,' and I have got the black flag up now" (U.S. Congress, U.S. Senate, Committee on Patents, p. 82). In his eyes, the push for international copyright was "the clamor of two hundred authors against the interests of fifty-five millions of people" (p. 74). This pitting of the minority against the majority was a common feature of opposition to stronger copyright laws. When Congress refused to consider international copyright in 1873, the Joint Committee on the Library concluded that it would be "not only an unquestionable and permanent injury to the manufacturing interests in producing books, but a hinderance to the diffusion of knowledge among the people and to the cause of universal education" (Morrill, p. 8). Far from pirates, those publishers who reprinted foreign works without compensating their authors presumed to serve democratic ideals and to aid national industry.

Authors were inclined to take a different view of the matter. William Cullen Bryant declared, "[The author] enters the great forest of ideas, which is common ground, hews down trees, shapes them into articles of furniture, or builds a house with them, and he who takes from him that furniture is a thief, and he who breaks into that house is a burglar" (International Copyright, p. 14). It was common for authors to equate unauthorized reprinting as theft, but even the strongest supporter had to concede that in many cases there was nothing strictly illegal about "piracy." In his article "American Authors and British Pirates" (1887), the author Brander Matthews—one of the founders of the influential American Copyright League—conceded: "At bottom, the publishers, good or bad, are not to blame; it is the condition of the law which is at fault. While men are legally permitted to make money by seizing the literary property of others, some will yield to temptation, and take what is not theirs to take" (p. 212). Pirates were a legal part of the nineteenth-century book trade.

THE AMERICAN COPYRIGHT LEAGUE

Given the nature of the debate, it is not surprising that throughout the efforts to strengthen copyright laws, authors and like-minded publishers banded together to show their support for change. Such a process had begun with a memorial signed by prominent writers and delivered to Congress by Henry Clay in 1837 and was given more formal shape in the 1840s with the American Copyright Club, an organization headed by William Cullen Bryant (1794–1878). This later became the International Copyright Association in 1868. By far the most energetic iteration of these groups, and ultimately the most successful, was the American Copyright League. Begun in 1883, it was headed by James Russell Lowell (1819–1891), who penned this motto:

In vain we call old notions fudge,

And bend our conscience to our dealing;

The ten commandments will not budge

And stealing will continue stealing.

(Matthews, These Many Years, p. 225)

Its secretary was publisher George Haven Putnam (1844–1930), who picked up the torch carried by his father, the prominent publisher and magazine editor George Palmer Putnam. Putnam was one of the few publishers to support the cause from its early days. The league was active in lobbying the American people as well as the government. It produced a number of publications, including even a sermon written by the member and clergyman Henry Van Dyke in 1888, The National Sin of Literary Piracy. The organization counted among its members Henry James, William Dean Howells (1837–1920), and nearly every other prominent living author. A pamphlet published by the league included statements from Louisa May Alcott, Rebecca Harding Davis, and Frederick Douglass. Authors gave public readings of their works to raise awareness and to raise funds to support their efforts throughout the 1880s.

Of course, some of the league's most important work was done before Congress. It threw its support behind a bill presented by Senator Joseph Hawley of Connecticut in 1885 that called for establishing reciprocal copyrights: foreign authors would receive the same copyright protections provided American citizens if their nations extended the same rights its citizens enjoyed to American authors. In November, Twain and two other members of the league met with President Grover Cleveland; Twain wrote in his notebook on 19 November, "I ventured to urge him to make I.C. the child of his administration, & nurse it & raise it" (p. 211). The president evidently paid some attention, for he included a call for action on international copyright in his address to Congress in December 1885 (Solberg, p. 24).

In 1886, as the Senate Committee on Patents turned to consider the Hawley bill, it also had another measure to consider. The Chace bill, supported by a number of publishers, printers, and typesetters, allowed for copyright protection of foreign works provided they were printed and manufactured in the United States; in other words, it forced authors to make arrangements for American publication, and it barred the importation of foreign works. This "manufacturing clause," as it became known, was a major source of contention for the American Copyright League, who feared that it ensnared a measure designed to protect authorial rights in a debate on protectionism.

Supporters of both bills, as well as opponents of any new measure, appeared before the Senate committee in 1886, and the league sent some of its most prominent members, including Mark Twain and James Russell Lowell. Their case was a difficult one, given the competing bills, and it was complicated further by Twain's surprising remarks. After first acknowledging that he was hesitant to speak in opposition to the league, he went on to say:

I should like to see a copyright bill passed here which shall do no harm to anybody concerned in this matter, and a great many more people are concerned in it than merely the authors. In fact I suppose, if the truth is confessed, the authors are rather less concerned pecuniarily in any copyright measure than many other people—publishers, printers, binders, and so on. The authors have one part in this matter, but theirs is the larger part. (U.S. Congress, U.S. Senate, Committee on Patents, pp. 15–16)

Twain's comments not only parted from the consistent message of the league but seemed to minimize copyright's importance to authors. Subsequent speakers for the bill attempted to address Twain's remarks and to argue in favor of the law, but they were unsuccessful, and supporters were forced to wait yet again.

"INTERNATIONAL COPYRIGHT" AT LAST: THE ACT OF 1891

The "manufacturing clause" eventually proved to be the secret to producing a bill that Congress would accept. When Putnam testified before the House Committee on the Judiciary in 1890, he announced that the American Copyright League now included not only authors but also members of those trades that had once opposed it:

The league . . . now comprises in addition to the authors . . . nearly all the publishing firms in the country, representatives of the typographers, who are authorized to speak for the National Typographical Union, representatives of the Typothetae, authorized to speak for the National Union of Employing Printers, representatives of the National Association of Librarians, representatives of the press syndicates, and a large number of representatives of the general public, whose co-operation in the attempt to secure adequate recognition for literary property is entirely unconnected with any direct interest in the business of writing, making, or selling books. (U.S. Congress, U.S. House, Committee on the Judiciary, pp. 28–29)

Although some smaller publishers and trade groups continued to protest, they were no match for the unified effort, and Congress passed the bill on 3 March 1891. Foreign authors were finally granted the same rights as American authors in the United States, provided they manufactured their books in the country and so long as their own nations provided reciprocal rights. These were no small obstacles for some writers, and the publication requirement served to keep the issue of establishing a copyright that was truly international in more than name a pressing concern. Over the next few years, there was continued agitation for the United States to revise its laws in this regard. The United States did join the Buenos Aires Convention in 1914, allowing for reciprocal copyrights with several Latin American countries, but efforts to go beyond this failed for many years.

The bill was a moment of triumph after a long struggle, however. When it passed, Walt Whitman remarked to a friend: "We have our international copyright at last—the bill is signed today. The United States, which should have been the first to pass the thing, is the last. Now all civilized nations have it. It is a question of honesty—of morals—of a literature, in fact" (Traubel, pp. 54–55). For American writers, the bill had always been tied to the idea of a national literature, and its passage meant that they could now compete on an even footing in the marketplace. This was not the end of their efforts, of course. There were still other issues to address, particularly the matter of duration of copyrights and new forms of recording and transmitting works, but the Copyright Act of 1891 was an important milestone in American literary history.

BACK TO THE DRAWING BOARD: THE COPYRIGHT ACT OF 1909

In 1831 Congress amended the copyright law to extend copyright from fourteen to twenty-eight years, with the possibility for renewal for another fourteen years at the conclusion of the first term. For authors who felt that literary property should be treated the same as real estate or any other product of labor, this limitation was unacceptable. As Howells noted:

If property in houses or lands—which a man may get by dishonest trickery, or usury, or hard rapacity—were in danger of ceasing after forty-two years, the whole virtuous community would rouse itself to perpetuate the author's right to the product of his brain, and no griping bidder at tax-sales but would demand the protection of literature by indefinite copyright. (Budd, p. 151)

Throughout most of the nineteenth century, the issue of international copyright had occupied advocates of stronger literary property rights, but with that issue at least partially addressed, the question of duration came to the forefront. The 1909 revision of the copyright law extended the term of the renewal to twenty-eight years, allowing for the possibility of a fifty-six-year copyright: the "limited times" set forth in the Constitution were growing less limited, a trend that would continue throughout the twentieth century.

There was one other major aspect of the revision that, in retrospect, seems a harbinger for things to come. The law for the first time allowed for recording and mechanical reproduction rights, reflecting the emerging audio and visual technologies. The provision itself was aimed primarily at protecting the rights of composers whose scores were being copied onto piano rolls, but it represented one of the first clear indications of how copyright law would have to be continually modified to adapt to new modes of reproducing and transmitting texts. Along with the extension of the length of protection, these two changes in the laws of literary property signaled the new era of copyright struggles that continues in the early twenty-first century.

BIBLIOGRAPHY

Primary Works

Archer, Stevenson. International Copyright. Speech of Hon.Stevenson Archer, of Maryland, Delivered in the House of Representatives, March 23, 1872. Washington, D.C.: F. and J. Rives and Geo. A. Bailey, 1872.

Carey, H. C. Letters on International Copyright. 2nd ed. New York: Hurd and Houghton, 1868.

International Copyright. Meeting of Authors and Publishers, at the Rooms of the New York Historical Society, April 9, 1868, and Organization of the International Copyright Association. New York: International Copyright Association, 1868.

Matthews, Brander. "American Authors and British Pirates." New Princeton Review 4, no. 5 (1887): 201–212.

Matthews, Brander. These Many Years: Recollections of a NewYorker. New York: Scribners, 1917.

Morrill, Lot Myrick. International Copyright. U.S. 42nd Cong., 3rd sess. S. Rept. 409. Washington, D.C.: Government Printing Office, 1873.

Traubel, Horace, ed. With Walt Whitman in Camden. Vol. 8. Edited by Jeanne Chapman and Robert MacIsaac. Oregon House, Calif.: Bentley, 1996.

Twain, Mark. Mark Twain's Notebooks and Journals. Vol. 3, 1883–1891. Edited by Robert Pack Browning, Michael B. Frank, and Lin Salamo. Berkeley: University of California Press, 1979.

U.S. Congress. U.S. House, Committee on the Library. Report [To accompany bill H. R. No. 779]. 40th Cong., 2nd sess. Rept. 16. Washington, D.C.: Government Printing Office, 1868.

U.S. Congress. U.S. Senate, Committee on Patents. International Copyright. 49th Cong., 1st sess. S. no. 161. Washington, D.C.: Government Printing Office, 1886.

U.S. Congress. U.S. House, Committee on the Judiciary. Testimony before the House Committee on the Judiciary on International Copyright. Washington, D.C.: Government Printing Office, 1890.

Van Dyke, Henry. The National Sin of Literary Piracy: ASermon Preached by Henry Van Dyke, D.D. New York: Scribners, 1888.