The Illustrated Story of Copyright
© 2000 by Edward Samuels

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[230]

Chapter Ten

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International Copyright Relations

 

 

 

1790-1891: Copyright Outlaws

 

[230] From outlaw to champion.

Barbara Ringer, then assistant register of copyrights, later register of copyrights, described the American role in international copyright in 1968:

                Until the Second World War the United States had little reason to take pride in its international copyright relations; in fact, it had a great deal to be ashamed of. With few exceptions its role in international copyright was marked by intellectual shortsightedness, political isolationism, and narrow economic self-interest. . . .

                After a century as a virtual outlaw, a half century as an outsider, and 15 years as a stranger at the feast, the United States suddenly finds itself cast as a leading champion of literary property. . . . In view of our dubious past performance we are hardly in a position to adopt a tone of moral indignation . . . .

[231] In few nations have artists been more rare. 

The early output of American literature, art, and science was so meager that de Tocqueville thought it necessary to explain that “The Example of the Americans Does Not Prove That a Democratic People Can Have No Aptitude and No Taste for Science, Literature, or Art.”  In making his argument, he conceded that

    It must be acknowledged that in few of the civilized nations of our time have the higher sciences made less progress than in the United States; and in few have great artists, distinguished poets, or celebrated writers, been more rare. Many Europeans, struck by this fact, have looked upon it as a natural and inevitable result of equality; and they have thought that, if a democratic state of society and democratic institutions were ever to prevail over the whole earth, the human mind would gradually find its beacon-lights grow dim, and men would relapse into a period of darkness.

Robert Spiller confirms de Tocqueville’s assessment, referring to the 1790s as a “false literary dawn” in America, and the following years as the literary “dark ages.”

The role of the United States in the international copyright community has gone from that of outlaws to outsiders to “strangers at the feast” to leading members of the club. When we finally decided, in recent years, to fully join in the feast, we pushed ourselves to the front of the line with all the moral bravado of newcomers. All in all, it’s a pretty embarrassing history. What has happened in the intervening two centuries, however, is that we have gone from a position in which the domestic concerns limited our international vision to one in which the international agenda has driven most recent domestic copyright reforms.

 

            The first copyright act of 1790* specifically protected only American authors. It provided protection to “the author and authors . . . being a citizen or citizens of these United States, or resident therein.” And the treatment was not inadvertent; the statute specifically went on to clarify the limitation:  

[231] To be sure, the copyright law of many other countries at that time was not any more protective of the rights of foreign authors. For example, England didn’t generally grant copyrights to American authors, either. But which way do you suppose the traffic of creative works was flowing in 1790? While any American library would consist primarily of English-language works created abroad, there were very few American authors who were accorded serious attention in England.

 

*Copyright act of 1790, see p. 14.

 

            Of course, that situation began to change during the nineteenth century. Among others, Washington Irving, James Fennimore Cooper, Ralph Waldo Emerson, Nathaniel Hawthorne, Henry Wadsworth Longfellow, Edgar Allen Poe, Harriet Beecher Stowe, Henry David Thoreau, Herman Melville, and Walt Whitman began to carve out a distinctly American literature, of which even the British took note.
 

[231] Walter Scott.

While the address of the British authors claimed that Walter Scott “received no remuneration from the American public,” recent research indicates that he was paid for the advance sheets of some of his novels. As concluded by James Barnes, “Although Scott’s income from the sale of advance sheets was modest, it is certainly inaccurate to say, as the Knickerbocker  did in 1835, that Walter Scott never received a cent on the sale of his works in America.”

[234] Less inclined to read the novels of Cooper or Hawthorne.

Max Kempelman has made the same point as the British authors in their 1837 address:

    This practice hurt American authors too for their works had to meet the unfair competition of British books which were cheaper because they were not paid for. American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter. The same American writers also . . . were similarly not protected in England. Longfellow asserted a few years before his death that he had twenty-two publishers in England and Scotland, but that “only four of them took the slightest notice of my existence, even so far as to send me a copy of the book.” Harriet Beecher Stowe too is reported to have received no return whatever for her Uncle Tom’s Cabin, even though it sold more than 1/2 million copies in Great Britain during its first year alone.
                American men of letters were, therefore, apart from any other considerations, unable to rely on literature for a livelihood. Longfellow and Lowell were college professors; Hawthorne was in the government service; Emerson engaged in lecturing. And American readers were weaned on a literature not their own.

Stowe apparently learned her lesson. William Charvat reported that “[S]hrewd writers like Mrs. Stowe [eventually] made better bargains with English publishers than Irving, Cooper, Prescott, and Melville in earlier days.”

            In 1837, several prominent British authors submitted to Congress an address and petition for passage of a copyright amendment to protect foreign authors in the United States. The petition made several major points. The British authors were “exposed to injury in their reputation and property,” both monetarily and because their reputations suffered when “mutilated and altered” versions of their works were published with impunity. The British authors were particularly hurt because, “from the circumstance of the English language being common to both nations, the works of British authors are extensively read throughout the United States.” The petition also appealed to the national interests of American authors. Without effective protection, foreign works were published extremely cheaply in the United States; but it then became difficult for American authors to compete against the unauthorized and uncompensated cheap imports.

 

            The address of the British authors, presented to the Senate by Henry Clay, was unsuccessful in getting the [232] United States to change its law. The following year, England passed the International Copyright Acts, and so began the road to recognizing the copyrights of foreign authors. But since the English law was made conditional upon reciprocity in other countries, American authors continued to be denied their rights under British law just as the British were denied rights under the U.S. law.

 

            Notwithstanding the pleas, the American law, protecting only American authors, was renewed several times from 1831 through the 1880s, almost without change in this respect. It was apparently possible under the existing laws for particularly resourceful Americans to obtain protection in England by simultaneous publication there, or for resourceful British citizens to obtain protection in the United States by simultaneous publication here, but protection apparently required that the author travel to the other country and reside there at the time of publication. Or an author might be able to convey the publication rights to a citizen of the other country before publication; but that rarely led to a very reasonable payment. Samuel Clemens claimed that he was able to navigate the technicalities of the British law, but most authors were not as fortunate.
 

Charles Dickens

[233] The explosion of all Yankee-Doodle-dum.

Daniel J. Boorstin describes how Dickens set out to get even:

    Instead of making Chuzzlewit  a weekly serial, Dickens found another way to heighten interests. He would have Chuzzlewit “go to America.” . . . In the United States he had been lionized by readers, and formed warm personal friendships with Longfellow and others, but he was vilified by the press. Slavery in America, which Dickens loudly opposed, they said was none of his business. His plea for an American copyright law to protect authors from pirating they called purely mercenary, a motive that Americans found suspect in foreigners. In 1843, he believed, British readers would eagerly buy anything that Dickens had to say about America, especially if it was unfavorable. His American mail continued to bring scurrilous letters and contemptuous articles. . . . He would use the next numbers of Chuzzlewit, still unwritten, to embroider the most offensive points of his American Notes  and get even with his American assailants. . . . The predictable American reaction was explosive. “Martin has made them all stark raving mad across the water,” Dickens reported to Forster with glee. Carlyle also seemed pleased to note that “All Yankee-Doodle-dum” had exploded “like one universal soda bottle.”

[232] I thrust it down their throats.

In 1842, Charles Dickens visited the United States, and sat for this photograph by Mathew Brady. Of his trip, he made the following report:

    I spoke, as you know, of international copyright, at Boston; and I spoke of it again at Hartford. My friends were paralysed with wonder at such audacious daring. The notion that I, a man alone by himself, in America, should venture to suggest to the Americans that there was one point on which they were neither just to their own countrymen nor to us, actually struck the boldest dumb! It is nothing that of all men living I am the greatest loser by it. It is nothing that I have to claim to speak and be heard. The wonder is that a breathing man can be found with temerity enough to suggest to the Americans the possibility of their having done wrong. I wish you could have seen the faces that I saw, down both sides of the table at Hartford, when I began to talk about Scott. I wish you could have heard how I gave it out. My blood so boiled as I thought of the monstrous injustice that I felt as if I were twelve feet high when I thrust it down their throats.

 

            Particularly hard hit were W.S. Gilbert and Arthur Sullivan, whose delightful operettas were performed throughout the United States in the last decades of the nineteenth century. Having gotten burned on their productions of H.M.S. Pinafore  and The Pirates of Penzance, they tried various schemes to try to beat the American system. For Iolanthe, they published the libretto and basic piano accompaniment, but withheld publication of the full Sullivan score, on the assumption that it would be better protected as an unpublished work. They then assigned the American performance rights to D’Oyle Carte, whose company specialized in the production of Gilbert and Sullivan operettas, and arranged for a simultaneous opening of the work in [233] London and at the Standard Theater in New York. Notwithstanding their efforts, an American producer hired John Philip Sousa, leader of the Marine band in Washington, to arrange his own orchestral accompaniment to Iolanthe. When Carte tried to stop the competing American performances, the circuit court in Maryland, in the Iolanthe  case, found that the work, having been effectively published in England, was not protected under the existing American copyright law. Commenting upon the unique orchestration, the court observed that, “as enjoyed by the vast majority of these [thousands of] persons, the musical niceties of the orchestration are quite subordinate to the wit of the libretto and the airs and harmonies of the voice parts,— the orchestration being indeed a subordinate accessory.”  (Had the judge never seen and heard an authentic Gilbert and Sullivan performance?)

 

            For The Mikado, Gilbert and Sullivan not only withheld publication of the Sullivan orchestration, but they hired George Lowell Tracy, a Boston composer, to come to England and create a piano accompaniment; they then assigned the American performance rights to Tracy. To thwart the “Mikado-mania” in anticipation of their new production, Gilbert and Sullivan kept everything about their new production a secret; Carte and his company sailed to the United States under assumed names.

 

Gilbert &Sullivan poster

[235] When Gilbert and Sullivan attacked the “Pirates.”

This 1944 ad by Magnavox was part of a series commemorating the lives of immortal composers. Part of the ad describes Gilbert & Sullivan’s difficulties with copyright.

                The entire English-speaking world surrendered to H.M.S. Pinafore. In 1879 an American newspaper reported, “At present, there are forty-two companies playing Pinafore  about the country. Companies formed after 6 P. M. yesterday are not included.”

                Yet from this unprecedented American success, not one penny of profit came to Gilbert and Sullivan. In the absence of an international copyright law, any unscrupulous producer could “pirate” the words and music.

                To overcome this situation, the famous partners came to the United States and staged an “Authorized Version.” With Sir Arthur Sullivan conducting the orchestra, and William Gilbert, directing the performance, the official Pinafore received an ovation from music lovers of old New York. . . .

 

[235] The superiority of Sullivan.

Gerald Bordman notes that Sousa had also orchestrated Pinafore  for an American audience, and even conducted one of its numerous companies. Later, however,

    Sousa discovered Sullivan’s orchestrations and instantly recognized their superiority. From then on, Sousa placed Sullivan and Offenbach side by side in his private pantheon, and they would provide his melodic and orchestral models when he was ready to embark on his great works.

 

            Needless to say, a competing Mikado  performance was organized, and Carte, in charge of the authorized performance, sued to stop it. In 1885, the circuit court in New York called Gilbert and Sullivan’s plan “an ingenious one.” However, the court found that the American copyright in the libretto had been lost upon publication in England, and that the piano accompaniment, rewritten by the defendant, was not an infringement of the original score. Responding to the case, Sullivan wrote that “every miserable thieving penniless scoundrel in the States” could produce The Mikado  to his own orchestration, and [234] “there is a chorus of fiendish exultant glee in all the newspapers at our defeat”

           

[236] Annexing the brain property of others.

Sullivan conducted the American premiere of The Mikado  (though Gilbert was unable to attend), and made an unusual statement at the close of the performance, including the following:

    The talented ladies and gentlemen who form this company have worked with an enthusiasm and good-will impossible to praise too highly and difficult to acknowledge as we would wish. We should have been grieved indeed, had you received your first impressions of our opera from a spurious imitation. . . . , in which the music from having been made up from a pianoforte arrangement must necessarily be mutilated and be a misrepresentation of the meaning of the composer. . . . It may be that some day the legislators of this magnificent country, which I have lately traversed from East to West, may see fit to afford the same protection to a man who employes his brains in literature and art that they do to one who invents a new beer tap or who accidentally gives an extra turn to a screw, doing away with the necessity of boring a hole first. In that day those unfortunate managers and publishers who, having no brains of their own, are content to live by—well, annexing the brain property of others, will be in an embarrassing and pitiable condition, and I for one will promise them my warmest sympathy. But even when that day comes, as I hope and believe it will come, we, the authors and creators, shall still, as we do now, trust mainly to the unerring instinct of the great public for what is good, right, [237] and honest, and we shall still be deeply grateful, as I am to-night to you, ladies and gentlemen, for your cordial appreciation, your quick sympathy, and your generous recognition of our efforts to interest and entertain you.

The New York Times  responded as follows:

    The effect of Sir Arthur’s remarks would have been happier had he confined himself to returning thanks for the public’s reception of the work just performed, and to expressing his gratification that the “authorized version” of “The Mikado” had met with the success it merited. The first part of the address . . . was in the right vein, and was as graceful in form as it was becoming in spirit. Its second half was less felicitous, and, its tone, which recalled the cry of the proverbial fowl on its proverbial platform, and its setting, in which the hope was uttered that art works should have the same protection as newly invented “beer taps,” together with an assumed indignation at the proceedings of other persons, the indignation finding relief in hasty substitutions of civil words for intended vigorous terms, wrought a rather unpleasant impression. Mr. W.S. Gilbert no doubt harbors the same opinions as his colaborer, but his literary judgment would have counseled him to defer their publication until a more suitable opportunity, and above all, to avoid the inelegant comparisons resorted to by Sir Arthur. Perhaps, however, if Mr. Gilbert were let loose in the orchestra he would play greater havoc than Sir Arthur Sullivan on the rostrum.


            To be fair, Gilbert and Sullivan’s copyright problems were not limited to the United States. Even in their home country, they were thwarted by a copyright law that, like earlier American copyright laws, failed to adequately protect either performance or adaptation rights. Gilbert even helped to organize a new Association to Protect the Rights of Authors at home and abroad.

 

[240] Piracy was a sophisticated operation.

Piracy of foreign works was not simply a matter of sneaking a few illegitimate copies into the United States, but was a sophisticated operation on the scale of modern tape piracy. As Robert Spiller explained, speaking of the early 1800s:

    John Miller, a hack publisher of London, acted as agent for his most successful American counterpart, Mathew Carey in Philadelphia. It was his task to see that the sheets, or even the proofs if he could get them, of any potential British successes were in Carey’s hands by fast packet (about thirty days) almost before the bound volumes had appeared in the London bookshops and well before any of them could be imported. Carey paid Miller, not the British author or publisher, for his service. . . .

                When the sheets of a new book were received, they were at once divided among three or four typesetters who worked night and day in shifts and sometimes produced a reprint in twenty-four hours. Even one or two days’ priority assured financial success. It is perhaps significant that when this traffic was at its height, about 1815, popular books of American authorship were virtually nonexistent. . . . It is also significant that almost all the prominent early American printers of books . . . were violently opposed to any form of international copyright.

[241] A proper compensation in money and fame.

One of the supporters in favor of recognizing international copyright was Joseph Henry, inventor of the telegraph (see p. 98). He felt his reputation suffered because of a lack of such protection. Here’s how his argument went: because foreign textbooks were free for the printing, there was no financing to produce original textbooks by American authors.

    You can readily see how this effects the science of the country, take for example my own case—it is true that I have done but little but that little I think you will say is more than any one else has done in this country in the way of original research yet I have scarcely any popular reputation. . . . the want of an international copy right prevents my furnishing for my class and the classes of other colleges a text book in which I might set fourth my own claims and thus receive a proper compensation in money and fame for my labours.


            In 1878, authors and artists, publishers, academics and other interested parties, led by Victor Hugo, formed the Association Littéraire et Artistique Internationale, to sponsor conferences and begin drafting proposed international copyright treaties. That effort culminated in 1886 in the Berne Union for the Protection of Literary and Artistic Works, an international treaty that provided for so-called national treatment. Each participating country committed to amend its own copyright law to treat foreign authors from other Berne countries just as favorably as their own. England signed the treaty, as did most western European and many other countries. The United States sent a representative to the proceedings, but did not sign the treaty, claiming that it would be premature to commit to international standards before Congress had determined the appropriate American role in protecting foreign works.
 

Anthony Trollope

[238] Book-selling leviathans.

In 1868, Trollope, who had worked much of his life as an employee in the Post Office in England, visited the United States to negotiate a mail treaty. He also managed to obtain a commission from the British Foreign Office to lobby on behalf of an international copyright treaty between the United States and Great Britain. In his autobiography, he states his own optimism that the Americans might be persuaded to change their minds, and describes a discussion with Charles Dickens in which Dickens “strongly declared his conviction that nothing would induce an American to give up the power he possesses of pirating British literature.” Trollope himself did not blame the American people generally, whom he conceded to be generous; rather, he placed the blame squarely upon “the book-selling leviathans, and . . . those politicians whom the leviathans are able to attach to their interests. . . . It is the large speculator who becomes powerful in the lobbies of the House, and understands how wise it may be to incur a great expenditure either in the creation of a great business, or in protecting that which he has created from competition.”

            Having utterly failed on the copyright front, how did Trollope do on the postal front? Trollope, in his autobiography, boasted of a victory of sorts—though with some irony:

    The treaty . . . was at last made,—the purport of which was, that everything possible should be done, at a heavy expenditure on the part of England, to expedite the mails from England to America, and that nothing should be done by America to expedite the mails from thence to us. . . . This was a state of things which may probably have appeared to American politicians to be exactly that which they should try to obtain.

[239] Not one shilling.

Anthony Trollope, in his autobiography, explains his own plight.

                [T]he American readers are more numerous than the English, and taking them all through, are probably more wealthy. If I can get £1000 for a book here (exclusive of their market), I ought to be able to get as much there.

                I . . . received a copy of my own novel in the American form, and found that it was published for 7-1/2d. . . . Many thousand copies must have been sold. But from these the author received not one shilling.

Trollope recited a boast “on behalf of the American publishers, that though there is no international copyright, they deal so liberally with English authors as to make it unnecessary that the English author should be so protected.” His response was to tell of his own experience with “a certain American publisher—he who usually reprinted my works.” That publisher

    promised me that if any other American publisher republished my work in America before he had done so, he would not bring out a competing edition, though there would be no law to hinder him. I then entered into an agreement with another American publisher, stipulating to supply him with early sheets; and he stipulating to pay me a certain royalty on his sales, and to supply me with accounts half-yearly. I sent the sheets with energetic punctuality, and the work was brought out with equal energy and precision—by my old American publishers. The gentleman who made the promise had not broken his word. No other American edition had come out before his. I never got any account, and, of course, never received a dollar.


 

Memorial of American authors

[239] A memorial signed by American authors urging passage of an international copyright law. Only 6 of the 145 signatures in the original have been reproduced here.


1891-1955:

Copyright Outsiders

 

[242] Salutary effects.

    [B]y the end of 1892, nineteen thousand copyrights had been granted to foreign authors and composers . . . . Among salutary effects [of international protection] was the decrease in the reprinting of the trashiest English fiction, the publication of the good British works in reliable texts, and a general reduction in the price of standard foreign works. The most significant result for the author was that in 1894, for the first time, more American than foreign novels were published in the United States. That British titles continued to be well represented in our best-seller lists after 1891 is evidence that lack of copyright was not the only factor in Anglo-American competition in the nineteenth century; but the fact that American titles soon won and kept a majority of these lists shows how quickly our production of commercial literature was able to develop once fair conditions were established.
                                                              -William Charvat. 

I do wonder that the extension of copyright to British authors is said to have reduced  the price of standard foreign works.

In 1891, 101 years after first adopting federal copyright, the United States finally gave in to the international and domestic pressure, and passed an amendment granting copyright protection to foreign authors. As we shall see, however, such protection proved to be to some extent illusory.

 

[235]    First, let’s contemplate why it was that many major American publishers opposed such foreign protection in the first place. To be sure, American publishers of unauthorized foreign works benefited under the old system, by which they could produce cheap foreign works without having to pay for them. But over the years, many American publishers had begun publishing the works of American authors, and wouldn’t these publishers, just like the American authors, feel the unfairness of the foreign competition? Wouldn’t they want a more level playing field for their editions of American works?  Of course they would, and that is part of what explains the [236] change in American sentiment from 1790, when there were hardly any American authors, to 1891, when there were many.

 

            But the American publishers’ fears went further. What they were really afraid of was that the foreign, primarily British, publishers, would “ride the coattails” of the foreign authors’ rights. Once a British edition of a book had been printed, the British publishers would export that edition to the United States, and, under power of the newly granted rights, would extend the monopoly that the British book publishers had obtained from their British authors. And since the net flow of works was still from England to the United States, the threat to the powerful American publishing interests was great.

 

            The cleverness of the 1891 amendment was in the discovery of a compromise that granted the foreign authors  the rights that they demanded, while still denying foreign publishers  any rights. This result was achieved in the 1891 amendment by the so-called manufacturing clause. This clause simply provided that, as a condition of copyright protection, any foreign “book, photograph, chromo or lithograph” had to be “printed from type set within the limits of the United States.” In addition, the foreign authors had to register their works and deposit copies in the United States on or before the date of publication anywhere in the world. Needless to say, it was the rare foreign author who was able to meet these rigid requirements.
 

[244] U.S. discrimination against U.S. authors.

Ironically, after endorsing the Universal Copyright Convention, the U.S. copyright law actually discriminated against American authors. While foreigners were excused from complying with the manufacturing clause, U.S. authors were not, so they couldn’t take advantage of cheap labor costs to publish their English-language works abroad. There was a major effort to eliminate the now hobbled manufacturing clause in the 1976 major copyright revision, but in 1976 it was extended through 1984. In 1984, President Ronald Reagan vetoed an attempt to extend the manufacturing clause through 1986, but the veto was overridden by Congress. In 1986, the manufacturing clause finally died, and American authors were allowed to print their works abroad, just as foreign authors could under the Universal Copyright Convention.

            As might be expected, there were plenty of objections to the new manufacturing clause, and, over the next several decades, Congress adopted several amendments liberalizing it. For example, instead of having to register and deposit copies immediately, works first published abroad were given a “grace period” before the authors would have to comply with U.S. formalities. And the law was amended to make the manufacturing clause apply only to works in the English language. [237] (Sales of foreign language works were presumably not great enough in the United States to warrant a new printing, or to yield enough profits for the publishers to worry about.) But even after the amendments, the fundamental requirement remained: most works had to be printed in the United States. This was quite impracticable, particularly for time-sensitive works, such as periodicals and newspapers. The Chicago Graphic, for example, was able to publish weekly articles taken directly from British periodicals without any permission or compensation. And, of course, U.S. law still required the appropriate copyright notice and deposit, which seemed onerous to many foreign authors, since such requirements were eliminated in the Berne countries beginning in 1908. 

 

            Americans also discovered a neat ploy that came to be known as the “back door” to Berne. Under the provisions of the Berne Convention, if a work was first published simultaneously in a Berne country, it would be protected in all Berne countries, even if the author of the work came from a country that was not itself a member. So it quickly became standard publishing practice to first publish major American works simultaneously in the United States and in a Berne country—typically England or Canada. In this way, American authors got the privileges of Berne, and yet the United States had none of the obligations.
 

            This, of course, didn’t fool many people. Canada, particularly sensitive at the possibility that it would be used as the back door to Berne, declared that it would not extend protection to works published simultaneously in Berne countries by authors from non-Berne countries. The members of the Berne Union then unanimously agreed to a protocol that allowed its members to refuse protection under such circumstances, if the author’s own country did not grant adequate copyright protection to foreign authors. Although many foreigners [238] grumbled about the back door to Berne, few countries had the audacity to actually refuse protection to American works simultaneously published in Berne countries. Barbara Ringer notes that the resentment against the American practice was “surprising only in its relative mildness.”

 

            The United States did declare that it would protect the rights of authors from certain countries under the 1891 act, and did later enter into bilateral agreements with several countries, and two multilateral “Pan American” agreements. But the American formalities, and the manufacturing clause, continued to limit the rights of most foreign authors under U.S. law.

 

1955-1988:

Copyright “Strangers

At the Feast”

 

Although there were several efforts at reform, they seem to have been dwarfed during the first half of the twentieth century by two world wars and a world depression. After World War II, however, the United States, a victor on the battlefield, found itself also to be an exporter of copyrighted works, from books to music to movies. It was unseemly that we should remain isolated in the international copyright community.

 

            But what to do? In the intervening sixty-five years, the Berne countries had actually developed the international regime in a direction that the United States was unwilling to follow. The Berne countries had extended the minimal term of international copyright to the life of the author plus fifty years; but the United States still only recognized copyright for a maximum of fifty-six years.* The Berne countries had dispensed with all formalities as a prerequisite to copyright protection; but the United States still required copyright notice and deposit,† and still retained the burdensome manufacturing [240] clause. The Berne countries had added certain “moral rights” to the international regime, granting authors the right to claim authorship of their works and to prevent mutilation of their works, whether or not they had parted with the “economic” rights under copyright; but the United States didn’t generally recognize such moral rights.* In our absence, the rules of the game had been tightened, and we simply no longer met the entry requirements.

 

*Duration of copyright, see p. 205.

†Notice and other formalities, see p. 208.

*Moral rights, see p. 169.

 

            So did we capitulate, and raise our standards to the international level of Berne? No way. Instead, we came up with an incredible scheme. After World War II, the United States was able to push through the so-called Universal Copyright Convention (UCC). Although negotiated under the auspices of the newly created United Nations Educational, Scientific, and Cultural Organization (UNESCO), the treaty was clearly designed with the United States in mind. After all, most of the rest of the world already belonged to Berne, and relations between Berne countries would continue to be governed by that agreement. The role of the UCC was to accommodate the United States, by setting a lower threshold of protection. The treaty was ratified in 1952, and went into effect in 1955.

 

[242] Can we join Berne yet?  

Between the 1950s and the 1970s, American copyright underwent the most prolonged revision process in its history. After over twenty years of study and negotiation, the 1976 Copyright Act represented a thoroughgoing overhaul of the entire copyright system. One of its major changes was the adoption of a term of copyright—life of the author plus fifty years—that finally brought the United States into line with the Berne standard. The manufacturing clause was slated for retirement in 1984 (though it was not ultimately retired until 1986). That left only a few hurdles to our joining Berne—primarily the recognition of moral rights, and the dispensing of the notice requirement.

            As a young copyright professor in 1977, I attended a meeting of copyright professors and lawyers to discuss the new copyright revision. At one session, I asked one of the speakers if we could perhaps finish the final steps so that we could join Berne. The speaker noted my relative youth, and suggested that I could not possibly have been part of the twenty-year revision process, or I would understand how impossible that was. My recollection is that just about everyone in the room turned around to see who this naive young professor could be. I was humbled and embarrassed at the time, but I do take some comfort in the fact that only a dozen years later, we did the unthinkable, and changed our law to allow us to join Berne.

             The main feature of the Universal Copyright Convention was “national treatment,” just like the Berne Convention. But the minimal period of protection was set at twenty-five years from the date of first publication, which the United States met (since the first term of copyright in the United States was then twenty-eight years from publication). And there was no mention of “moral rights” that the United States might have trouble with. The major concession that the United States did have to make was in theoretically dispensing with copyright formalities. Even here, we seem to have achieved a limited victory, because the dispensing of formalities was conditioned upon the copyright owners’ putting on their works the copyright symbol (©) and the name of the copyright owner and year of [241] first publication. That is, the formality of notice would be waived if there was a copyright notice! The more important effect of our concession was that the United States really did waive any requirement that foreign works be registered in the United States, and we really did dispense with the rigors of the manufacturing clause for UCC works. This was the carrot that got other countries to agree to the idea of a second international copyright system to parallel the one that was already in place for most of the world.

 

            The Universal Copyright Convention remained the major international copyright treaty of the United States for thirty-three years. Under it, Americans were able to get authors all over the world to use the UCC copyright notice on their works, primarily in order to assure copyright protection in the United States.
 

Margaret Mitchell

[243] Sporadic attacks on American copyrights.

Some Dutch publishers launched their own little war on the American “back door to Berne.” For example, they published Dutch translations of such major works as Marjorie Kinnan Rawlings’s The Yearling and Margaret Mitchell’s Gone With the Wind. At the trial, the publishers claimed that “the only way to compel the United States to accede to the Bern[e] Convention is to disregard, in the countries which have acceded to that Convention, the copyrights of the citizens of that country.” At left is Ms. Mitchell, with dozens of translations of her book.

 

 

1988:

Members of the Club

 

In the years after the major copyright revision in 1976, the United States became more and more aware that it was a copyright exporting nation. The world read American books, listened to American music, watched American movies, and ran American computer programs. And as the technologies for electronically reproducing copyrighted works made it possible for users around the world to make unauthorized copies of U.S. works, we began lobbying around the world for other countries to tighten their copyright protection to regulate record, movie, and computer software piracy. The problem was that America had no real moral leverage in foreign countries. When we complained that their copyright laws were too lax, they just laughed and pointed out that we were the country whose copyright standards didn’t even meet the international standards set by Berne. Our trade negotiators came back to the United States and reported that we really just had to do whatever we could to remedy the problem.

 

            And then, in 1988, over a hundred years after the birth of Berne, we finally joined. Congress passed the Berne Implementation Act, and ratified [242] the international treaty that the United States had so long avoided. What did it require? The major concession was that the United States finally, reluctantly, did away with copyright formalities. The manufacturing clause had died in 1986; and in 1988, we agreed that copyright notice and registration would no longer be required for copyright protection.

 

[246] Still encouraging copyright formalities.

The United States still liked the idea of copyright registration, since it provided a public record of copyright owners, making it easier for copyright users to find and clear rights. So we left a bit of an incentive. If a copyright owner, foreign or domestic, does not register a copyrighted work, then the remedies available to the owner will be affected: without registration, the copyright owner cannot recover either attorneys’ fees or statutory damages (see p. 175). But even without registration, the copyright owner can still recover actual damages suffered, or actual profits gained by the infringer, and can still get an injunction in proper circumstances. So, my advice is, use the copyright notice (it costs nothing), and register the work (it costs only $30, compared to the loss of statutory damages and attorneys’ fees). But if you don’t, you at least don’t lose your copyright.

            Perhaps the most remarkable thing about the United States’s finally dispensing with formalities and joining Berne was how quietly it was ultimately achieved. After all the struggles and compromises that led to the 1976 copyright revision, there was a lot of trade and press coverage describing the new law, and its effect, in the library, educational, and other special communities. But after the 1988 act, there was hardly a whimper. One might have expected that there would be newspaper headlines, or at least trade journal articles, announcing that copyright notice was no longer required for copyright protection. But, aside from copyright law journals, hardly an article was to be found. It was almost as if there were a conspiracy to keep the news quiet, so that copyright owners would in fact continue to use “voluntary” copyright notice, and “voluntarily” register their works. Americans still liked public notice of copyright ownership, and a central registry of copyright owners, and they weren’t about to go around suggesting that authors and publishers should change their habits.
 

Pushing to the Head of the Line

 

Just about as soon as we became members of the club, we started to realize that the club wasn’t good enough. Sure, Berne required that member countries pass laws that granted protection to copyright owners. But just try suing under those laws! In many less litigious countries, the court systems were simply not receptive to the needs of copyright owners—or, in some countries, to any foreign plaintiffs; or, in some countries, to any [243] plaintiffs whatsoever. And if the court systems were not quick to enforce rights, then copyright piracy was bound to flourish.

 

            So the United States, along with Japan and European copyright exporting countries, began to explore a new paradigm of protection known as “trade-based” protection. The international regime known as the General Agreement on Tariffs and Trade (GATT) already existed . Under that regime, GATT countries were supposed to maintain free trade with member countries, and not impose unauthorized tariffs or other barriers. More importantly, GATT had an elaborate enforcement mechanism. If France, for example, set up unauthorized barriers to the importation [244] of American products, then the United States could bring an action in an international forum, and obtain the right to set up retaliatory barriers to certain French goods coming into the United States. The problem with GATT was that it dealt only with “goods,” tangible products. But patents and copyrights were intangible rights, outside the scope of GATT. So if France discriminated against American copyrights in music or movies, there was no remedy under the existing GATT. Wouldn’t it be great if the United States could retaliate by putting a tariff on, for example, French wine?

 

            In 1994, the United States and other copyright exporting countries were successful in getting GATT members to accept the TRIPS agreement, expanding GATT to include the Trade Related Aspects of Intellectual Property Rights. (As part of the change in thinking, the international system was renamed the World Trade Organization, or WTO.) What this provided was that intellectual property rights—patents, copyrights, and trademarks—would be brought into the international trade regime; if France failed to adequately enforce the copyrights of authors from the United States, then the United States would have a remedy in the international forum. In addition, the minimal level of protection provided by Berne, which the United States had only recently met, was raised, primarily in those areas in which American law was already more expansive. For example, the TRIPS agreement required that member countries protect computer programs* under their copyright laws, something that the United States had long done and long lobbied foreign countries to do. Also, the TRIPS agreement required that member countries give adequate protection against the commercial rental of phonorecords† and computer programs,‡ protection that had already been provided by amendments to the U.S. law. The TRIPS agreement even went beyond American law in providing that the rental of movies should also be protected•—although there was an escape clause that would arguably allow countries such as the United States not to change their law with respect to movies. Protection for the rental of movies was not required “unless such rental has led to widespread copying of such works [245] which is materially impairing the exclusive right of reproduction,” a test that would be hard to prove.

 

*Computer programs, see p. 81.

†Record and CD rentals, see p. 47.

‡Computer software rentals, see p. 92.

•Video rentals, see p. 69.

 

            In 1998, the United States was instrumental in promoting two treaties adopted by the World Intellectual Property Organization (WIPO). These treaties, among other things, created a whole new level of protection for digital works. Member countries are obligated to pass laws making it illegal to circumvent electronically protected digital works, or to alter copyright maintenance information embedded in digital works. These treaties then led the United States to pass the comprehensive Digital Millennium Copyright Act.*

 

*Digital Millennium Copyright Act, see p. 112.

 

International Law Pushing the

Domestic Agenda

 

In the dozen years it has been a member of Berne, the United States has been at the forefront in shaping the international copyright agenda. But the influence has been anything but one-way; in important respects, it is the international concerns that have defined the domestic agenda. For example, it was the carrot of Berne that got the United States first to extend the duration of protection to the life of the author plus fifty years,† and then finally to drop the copyright formalities of notice and registration.‡ Berne also expressly provides that member countries should recognize copyright in architectural works and certain moral rights of attribution and integrity. Although Congress in 1988 had insisted that U.S. laws were protective enough in these contexts, and required no amendments to bring them into compliance with Berne, such a position was dubious. Two years later, in 1990, Congress felt compelled to pay more than lip service to these treaty obligations, by specifically adding architectural works• to those protected by copyright, and by adopting at least a limited moral right for authors of visual works.**

 

†Duration of copyright, see p. 205.

‡Formalities, see p. 208.

•Architectural works, see p. 147.

**Moral rights, see p. 169.

 


[Image of Escher's
Drawing Hands.
Click here for a copy
of the image,
or to buy the poster]
 

[247] Drawing Hands.

Foreign copyrights have been “restored” since the international amendments became effective in 1996. Notice of many of the restored works has been printed in the Federal Register, the publication of federal rules and regulations. In one early case, a court upheld the copyright in many of the works of M.C. Escher, of which prints had been published without the requisite notice. Even if the court was wrong on that issue (which it probably was), the court held that the copyrights were saved because they were restored under the new federal provisions. Left, Escher’s Drawing Hands, in which copyright was restored.

            As part of the price for getting the TRIPS agreement creating the World Trade Organization, the United States agreed to do something that [246] it had never before done. Under TRIPS, the United States had to restore the copyright in foreign works that had gone into the public domain because of a prior failure to meet American formalities. This massive restoration of foreign public domain works would never have come about except that it was deemed necessary in the international context: we wanted to get retroactive protection of works—especially sound recordings and computer programs—that hadn’t qualified for protection under the prior law in some foreign countries, and we could only get retroactive treatment if we were willing to grant retroactive treatment.

 

            The United States also, for the first time, had to extend copyright protection to cover “live” musical performances. (Prior to that time, federal copyright protection only covered creative works that had been “fixed in a tangible medium of expression” by the copyright owner.) Under the TRIPS enabling legislation in 1994, it became illegal to make or sell “bootleg” sound recordings or music videos of live musical performances.*

 

*Bootleg music performances, see p. 170.

 

            In some contexts, it’s hard to tell whether it’s the domestic agenda driving the international agenda, or the other way around. In the case of the Digital Millennium Copyright Act,† the initial push came from the administration’s White Paper. When the proposals from the White Paper foundered in Congress, the matter was diverted to the international WIPO arena, passed there, and then brought back to Congress as part of the international treaty. As a result of the internationalization of copyright, it would seem that the domestic and international agendas have merged considerably.

 

†Digital Millennium Copyright Act, see p. 112.

 

It’s a Two-Way Street

 

I may have created the impression that  American copyright has until recently been churlish in comparison with that of the rest of the world. However, there are ways in which the United States has been more hospitable to creativity than its European counterparts.

 

[247]    It has long been perceived that there are two different “cultures” of copyright. One, deriving from the civil law of France and most of the rest of Europe, emphasizes the “moral right,” or natural right, of authors; the other, deriving from the common law of England and the United States, emphasizes the economic arguments for copyright. The latter, American, approach sometimes reduces copyright from a “natural” or “property” right to a right derived entirely from statute. Copyright is characterized as a “monopoly,” to be tolerated only so far as necessary to encourage authors to create their works.

 

[248] The purpose of copyright.

In another context, I have commented upon the purpose of copyright in this country:

    Many protectionists have tried to justify copyright law as based upon (1) natural rights or (2) moral rights or (3) property rights. Critics have tried to limit this approach by (1) gleefully citing the embarrassing early history of copyright law in England, which was intended as much to regulate publication as to promote it; (2) emphasizing the “social utility” theory of copyright, by which the only or main justification for allowing what is basically a “monopoly” is the ultimate good that is achieved for society by an increase in the number, maybe even the quality, of works destined for the public domain; and (3) in recent years, subjecting copyright protection to a strict economic analysis that would limit any benefit to the copyright owner that was not clearly justified by a concomitant increase in the public good (read “public domain”). These arguments might be bolstered by (4) an explicit or implicit reference to principles, even constitutional standards, from outside the copyright clause, particularly the first amendment’s guarantee of free speech.
                                                   -Edward Samuels

            But in some ways, the American approach has been more protective of authors, particularly where the new technologies are concerned. The “natural rights” approach, for example, does not work well for technologically produced copies of works—from photographs to sound recordings to computer programs. Under American law, once these works were accepted under copyright, the full range of protection was made available for them. But under the civil law approach, such mechanical reproductions [248] were protected more narrowly—with photographs receiving protection for a much more limited period, typically ten years, or sound recordings being relegated to a lesser range of protection under the rubric of “neighboring rights.” It was the American law that led the international push to bring computer programs within the scope of copyright protection generally.

 

            With the internationalization of copyright under Berne, TRIPS, and the other treaties, most of the countries of the world seem to be converging in their copyright doctrine. Whatever differences there may have been in the theoretical underpinnings of their domestic law have become pretty much irrelevant. Indeed, I would argue that our accession to Berne and the later treaties marks an acceptance of a broader natural rights justification for American copyright than Congress or the courts were previously willing to articulate. The law we have now embraced can only be explained by an expansive understanding of the role of copyright in society.

 

Conclusion

 

With the transnational technologies of radio, television, and the Internet, copyright has become a truly international challenge. Not surprisingly, the expansion of copyright that has typified American law is evident pretty much around the world. Even countries that have balked at property rights generally, such as the Soviet Union in the 1970s, ultimately came to embrace copyright principles. And even China, still hesitant and suspicious about adopting capitalism generally, has joined the Berne international copyright community and lobbied for admission to the World Trade Organization. Copyright will continue to be important in the international legal community for as long as we still want to encourage the making of creative works. I hope that will be forever.
 

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