How Writers Coped without Copyright: Intellectual Property and Piracy Managed to Co-Exist in 19th-Century America

By Bell, Tom W. | Reason, March 2014 | Go to article overview

How Writers Coped without Copyright: Intellectual Property and Piracy Managed to Co-Exist in 19th-Century America


Bell, Tom W., Reason


Without Copyrights: Piracy, Publishing, and the Public Domain, by Robert Spoo, Oxford University Press, 355 pages, $35

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What would happen if authors and publishers could not count on copyright to protect them from piracy? History hints at the answer. From the founding of the United States until well into the 20th century, domestic copyright laws generally denied foreign authors any form of legal redress. Yet as the legal scholar Robert Spoo explains in Without Copyrights, writers from other lands developed alternative strategies to recoup the costs of writing, producing, and marketing their works.

It wasn't simple, and it wasn't always pretty, but this informal system kept the American public well supplied with global literature. In Spoo's able recounting, moreover, it gave rise to some entertaining literary brawls and criminal obscenity.

Until the Chace Act was passed in 1891, only citizens and residents of the U.S. could qualify for American copyrights. Even after that, for another 60 years or so, domestic laws continued to deny copyrights to non-American authors who first manufactured or published their works abroad, or who failed to satisfy the stringent statutory formalities of U.S. copyright law. Few foreign authors bothered trying to run that legal gantlet; many who tried, failed. Through these openly protectionist provisions, U.S. copyright law subsidized domestic publishers, typesetters, printers, binders, and readers, while enriching the public domain with the works of foreign authors.

Spoo provides a considerable service simply by recreating that lost legal world, which cannot fail to seem bizarrely xenophobic to anyone familiar with how the law works now. (For the most part, copyrights today automatically apply across national boundaries.) But that merely sets the stage for Spoo's main task: describing how authors and publishers adapted to a land without copyright.

Especially prior to the Chace Act, publishers relied on voluntary and extralegal (but nonetheless quite effective) norms developed under the name of "trade courtesy," a practice in which many of the larger U.S. publishing houses acted as if foreign authors enjoyed domestic copyrights. Reputable publishers would respect any peer's claim--typically made via advertisement in a trade journal --to have purchased the advance sheets of a new book from its overseas publisher or to have reached a "first publication" agreement with the author.

Punishments for breaching trade courtesy included verbal j ousting and public shaming (usually through missives in the same trade journals that carried first-publication claims), predatory pricing (by which the rightful publisher would sell at a loss to deny its counterpart any profits), and retaliation (by poaching on the foreign titles claimed by the offending publisher). Notably absent from this list of sanctions: lawsuits.

Trade courtesy developed into a coherent and elaborate system of informal norms, giving U.S. publishers the confidence to risk printing, marketing, and distributing foreign works unprotected by copyrights. It also worked to the advantage of many foreign authors, who won payments from U.S. publishers and new readers.

The courtesy tradition did not afford complete control over unauthorized reproductions, of course; not even copyright can promise that. Rogue publishers flouted the rules and flooded the market with shoddy editions of especially popular works. Although denigrated as pirates by their more respectable counterparts, the cheap reprinters proclaimed themselves as champions of the reading public against a conspiracy in restraint of trade. …

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