Copyhype

In a recent article in Newsweek, cultural historian Peter Baldwin (who recently published The Copyright Wars: Three Centuries of Trans-Atlantic Battle, reviewed by Robert Levine at Columbia Journalism Review), says of early US copyright law, “More important, it refused to grant foreign authors protection. *** Convinced that a fledgling nation, eagerly building its cultural infrastructure, would be best served by having the Old World’s heritage freely on tap, America’s founders not only shamelessly pirated European culture, but also proudly hailed their pilfering as pursuit of the Enlightenment ideal of an educated democratic citizenry.”

Given that this is an excerpt published in a magazine, I can’t see what sources Baldwin relies on to make these claims, but having studied a bit of copyright history myself, this strikes me as inaccurate on a number of levels. First, to point out that the first copyright act did not grant foreign authors protection makes the fact sound remarkable when it was anything but. This was generally the case with most laws at the time. And to say the US “refused” to grant protection to foreign authors makes it sound like a far more deliberate and deliberated choice than it actually was. There is no recorded debate about the substance of any provisions of the first copyright act—the bill itself was essentially the same as England’s Statute of Anne and the state copyright acts that preceded the Constitution.¹Oren Bracha, Commentary on the U.S. Copyright Act 1790 (2008). Indeed, the only deliberate choice seems to have been the decision to pass separate copyright and patent bills; initial proposals had the two combined. This was done at the urging of South Carolina representative Aedanus Burke, who told his fellow Congressmen, “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.”²Gales & Seaton’s History, pp. 1117-18 (January 25, 1790). Burke thought a separate copyright bill could be passed easily, saying “a short bill would be sufficient for the purpose, because it is almost as easy to ascertain literary as any other kind of property.” Patent legislation, on the other hand, “would occasion a good deal of discussion.” A bill sped through the House and Senate and was signed into law by President Washington a mere four months after Burke’s remarks.

Second, while some at the time may have “proudly hailed their pilfering,” this was far from a universally shared belief. In the century following the first US copyright act, you can find numerous examples of Americans calling for recognition of copyright beyond national borders, and serious legislative efforts to remedy this defect began as early as the 1830s. One of the earliest was a result of an 1837 petition of British Authors to a US Senate Committee seeking protection of their property in the United States. And while, yes, one Senator (James Buchanan from Pennsylvania, who, coincidentally, would go on to become one of the worst Presidents in US history) talked about the importance of focusing on “the interest of the reading people of the United States”, and how “cheap editions of foreign works” brought them “within the reach of every individual,”³Senator Buchanan’s remarks also included an early version of the “piracy is great exposure” claim, saying, “But to live in fame was as great a stimulus to authors as pecuniary gain; and the question ought to be considered, whether they would not lose as much of fame by the measure asked for, as they would gain in money.” there was more discussion about the detriments of a lack of protection.⁴Gales & Seaton’s Register of Debates in Congress, 24th Congress, 2nd Session, 670-71 (Feb. 2, 1837).

Kentucky Senator Henry Clay, who presented the petition to the Senate, said, “Of all classes of our fellow-beings, there is none that has a better right than that of authors and inventors, to the kindness, the sympathy, and the protection of the Government. And surely nothing could be more reasonable than that they should be allowed to enjoy, without interruption, for a limited time, the property created by their own genius.” Clay concluded his remarks by saying, “Indeed, I do not see any ground of just objection, either in the constitution or in sound policy, to the passage of a law tendering to all foreign nations reciprocal security for literary property.” South Carolina Senator William Preston observed that “there was a large and meritorious class of authors in this country, who had a direct interest in securing to the authors of Great Britain the copy-right to their works, because copies of these works were sold without the expense of a copyright, and thus came in free and injurious competition with the works of American authors.”

In the years following, several groups of American authors added their voices in support of international copyright protection. On February 4, 1837, thirty US citizens (including telegraph inventor Samuel Morse) submitted a petition “Praying an alteration of the Law regulating Copyrights.” The petitioners wrote that “they believe native writers to be as indispensable as a native militia” and echoed Preston’s remarks that “our own authors are unable to contend with foreigners who are paid elsewhere.” They concluded by calling for international copyright protection to, among other goals, secure the public “against a discouraging monopoly.” A second petition was submitted by “a number of citizens of Boston” April 24, 1838 and signed by 130 individuals. The petition urged passage of an international copyright law, asserting it was “essential to the encouragement and development of American literature.”

These efforts were unsuccessful, as were other pushes for international copyright law in the 1850s and 1860s.⁵William Patry, Copyright Law and Practice (1994). But the motivation persisted. The following is an excerpt from Brander Matthews‘ 1890 article, The Evolution of Copyright, that demonstrates the pragmatic nature of this development as well as calls for further improvement.

In the beginning the sovereign who granted a privilege or at his caprice withheld it, could not, however strong his good will, protect his subject’s book beyond the borders of his realm; and even when privilege broadened into copyright, a book duly registered was protected only within the state wherein the certificate was taken out. Very soon after Venice accorded the first privilege to John of Spira, the extension of the protection to the limits of a single state only was found to be a great disadvantage. Printing was invented when central Europe was divided and subdivided into countless little states almost independent, but nominally bound together in the Holy Roman Empire. What is now the Kingdom of Italy was cut up into more than a score of separate states, each with its own laws and its own executive. What is now the German Empire was then a disconnected medley of electorates, margravates, duchies and grand-duchies, bishoprics and principalities, free towns and knight-fees, with no centre, no head and no unity of thought or of feeling or of action. The printer-publisher made an obvious effort for wider protection when he begged and obtained a privilege not only from the authorities of the state in which he was working but also from other sovereigns. Thus when the Florentine edition of the Pandects was issued in 1553, the publisher secured privileges in Florence first, and also in Spain, in the Two Sicilies and in France. But privileges of this sort granted to non-residents were very infrequent, and no really efficacious protection for the books printed in another state was practically attainable in this way. Such protection indeed was wholly contrary to the spirit of the times, which held that an alien had no rights. In France, for example, a ship wrecked on the coasts was seized by the feudal lord and retained as his, subject only to the salvage claim. In England a wreck belonged to the King unless a living being (man, dog or cat) escaped alive from it ; and this claim of the crown to all the property of the unfortunate foreign owner of the lost ship was raised as late as 1771, when Lord Mansfield decided against it. When aliens were thus rudely robbed of their tangible possessions, without public protest, there was little likely to be felt any sense of wrong at the appropriation of a possession so intangible as copyright.

What was needed was, first of all, an amelioration of the feeling toward aliens as such ; and second, such a federation of the petty states as would make a single copyright effective throughout a nation, and as would also make possible an international agreement for the reciprocal protection of literary property. Only within the past hundred years or so has this consolidation into compact and homogeneous nationalities taken place.

***

The United States of America is now the only one of the great powers of the world which absolutely refuses the protection of its laws to the books of a friendly alien. From having been one of the foremost states of the world in the evolution of copyright, the United States has now become one of the most backward.

A year after this article was published, the US passed the International Copyright Act, which for the first time conditionally extended copyright protection to foreign authors.