Copyright Without Law?
Law isn’t the only way for people who do business together to keep one another in line. In most fields, there’s a faster, cheaper and simpler sanction: don’t do business with the miscreant anymore. Such self-policing by a group isn’t fail-safe. Ostracism might not cost enough to be a deterrent in markets with many participants, little reporting and few long-term relationships, and there will always be a few bad actors who choose to be disreputable. But law, no matter how absolute, doesn’t prevent every act of bad behavior either, and self-regulation is more flexible and quicker to adapt to changing circumstances. The phenomenon has been called “order without law,” and it has been detected in Maine lobstermen, who respect one another’s trapping sites; in chefs, who are ginger about knocking off one another’s recipes; and in stand-up comics, who usually refrain from stealing one another’s routines and punch lines. It has even been found, believe it or not, in publishing. Sometimes, in the absence of copyright, publishers have paid authors and have abstained from reprinting the books of authors they haven’t paid. Ulysses, by James Joyce, considered by some the greatest novel of the twentieth century, lost its copyright protection in America on a technicality soon after it was published. But from the 1930s to the ’90s, Joyce and his estate were paid royalties from its publication in America anyway, thanks to exactly this kind of happy anarchy. In his new scholarly book Without Copyrights, the legal and literary historian Robert Spoo tells the remarkable tale, which Spoo doesn’t necessarily deem a pretty one. Spoo rather sympathizes, in fact, with the character many observers would consider the villain.
That would be Samuel Roth, a fan, in equal measure, of soft porn and of Joyce, T.S. Eliot, Ezra Pound and other high-modernist writers of the early twentieth century. Roth published a series of mildly smutty magazines—mild by today’s standards, at any rate, though they landed him in jail in his own day—and was always on the hunt for material that he could reprint without having to pay for it. He trolled through records in the US Copyright Office in search of copyrights that hadn’t been renewed, and he leafed through literary journals in search of copyright notices that had been printed sloppily or not at all—in those days, grounds for a loss of copyright protection. On the rare occasions when Roth did pay authors, he tended to pay after the fact of printing, and usually only after considerable hounding. But Spoo believes nonetheless that Roth was in earnest—or, at least, “not wholly insincere”—when he claimed that he republished modernist prose and poetry because he was an admirer and wanted to make the work available to Americans of modest means. Spoo admits to falling under the spell, to some extent, of “the romance of dissemination,” as he puts it, and writes that he feels some affection for Roth, whom he describes as “U.S. copyright law luridly personified, shorn of courtesies and dedicated to a louche, bullying sort of public service.”
Joyce, in contrast, appears to Spoo as “the preacher of droit d’auteur,” guilty of taking a somewhat moralistic advantage of the legend of his genius. Joyce’s good-versus-evil rhetoric leaves Spoo a little uncomfortable. The third character in Spoo’s tale is Pound, who combined aspects of both preacher and rascal and is cast by Spoo as “the theorist” on account of his proposals to remake the law of copyright from scratch. Although Pound came to dislike Roth as a person, he refused to consign him to a circle of hell deep enough for Joyce’s satisfaction. Still, it wouldn’t quite be accurate to say that Pound occupied the middle ground; his opinions on copyright, as on many things, were too idiosyncratic to have much effect on business practices or on mainstream legal debate.
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In American publishing, the heyday of order without law came in the nineteenth century, when the practice was known as “the courtesy of the trade.” The system had antecedents in seventeenth-century England, and it has been described before, including by Adrian Johns, whose view of it in Piracy (2009), an excellent history of intellectual property law, is a little more cynical than Spoo’s.
Until late in the nineteenth century, no work published abroad could receive a copyright in the United States. American publishers who wanted to reprint foreign books risked going broke through their efforts to undersell one another, so they came up with a system: the first publisher to announce an American printing of a foreign book had dibs, and sometimes strengthened his claim by buying advance sheets from the original foreign publisher—which helped him get a jump on any rivals who might not abide by the understanding. According to what was known as “the rule of association,” an author’s later books belonged to the American firm that had published the first one, a restraint that was sometimes applied to American authors as well as foreign ones. Infractions were punished by private remonstrance; public shaming; appeals to consumers, booksellers and other publishers to ostracize the offender; and retaliatory underselling.
The publisher Henry Holt was to boast that between 1850 and 1876 the courtesy of the trade “not only prevented ruinous competition between American publishers, but also secured to foreign authors most of their rights.” Payments to authors were sometimes “handsome, even extraordinary,” Spoo writes, and he hails the “exuberant scramble to exploit a large and utterly free resource,” which he sees as “a necessary condition of American literary culture” at a time when the country imported far more literary works than it exported.
There are hints, however, that courtesy didn’t quite constitute an intellectual property utopia. For one thing, there’s a chicken-and-egg problem to be reckoned with in the relationship between America’s disrespect for foreign copyrights and its literary balance of trade. As early as the 1840s, some American authors were insisting that the country needed to stem the flood of royalty-free British books if it ever hoped to develop a literature of its own, a campaign chronicled in Perry Miller’s 1956 literary history The Raven and the Whale. Spoo reports that in 1857 the American historian William Prescott complained, “Who will give two dollars a volume for Prescott, when one can buy Macaulay for seventy-five cents?”
Spoo acknowledges, moreover, that despite the occasional handsome payment, “authors were harmed financially by the courtesy cartel,” which undermined their bargaining power by making it difficult to switch publishers. In most cases, American publishers seem to have thought of payments to foreign authors as favors rather than obligations, to be conferred when a book sold particularly well and a publisher felt especially grateful. Spoo describes the payments with words like “solatium,” “honoraria” and “gratuities.” It seems likely to me that a legal requirement to pay would have pried a bit more from publishers’ wallets.
When the end of courtesy came in the 1870s and ’80s, the cheap reprinters who undermined it argued that the system had never paid authors all that much and accused it of being a trust that operated merely in the publishers’ own interest. Spoo concedes that after the Sherman Antitrust Act was passed in 1890, courtesy probably wouldn’t have fared well in the courts. It looked too much like price fixing.
Fortunately, in 1891, the Chace Act granted American copyright protection for the first time to works published abroad, and a new day seemed about to dawn. It looked as if American authors were at last going to have a level playing field, and foreign authors a greater likelihood of fair payment. But there was a catch. The Chace Act had a manufacturing clause: an American copyright was granted only if, on or before the date of a book’s foreign publication, the American publisher deposited in the US Copyright Office two copies of an edition printed from type that had been set in America or from plates that had been made in America. In the age before aviation, let alone the Internet, transatlantic coordination of this kind was hard to pull off, and even after a 1909 act added a grace period, the clause threw many new books into the public domain. And so well into the twentieth century, the courtesy of the trade continued to have a role to play, though it shed some of what Spoo describes as the “clubby self-congratulation and moral peacocking” that had invested it in the nineteenth century.
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