It is well known that early publishing houses in America built themselves up, in large part, through the publication of unauthorized editions of popular British authors.  This was a time when foreign works, including English-language books published in Britain, did not enjoy copyright protection in the U.S.  Indeed, books published abroad in English did not get copyright in this country until 1891, a full century after the first U.S. copyright law.  And even after that time, the strict formalities imposed on foreign works, including the infamous “manufacturing clause,” kept many works out of copyright.  American publishers used this legal situation to make money off of the popularity of British authors without having to pay any royalties to those authors.  The firm Harper published unauthorized editions of Walter Scott, for instance, while Grossett & Dunlap (now part of Penguin) built its business in part by publishing Rudyard Kipling without his permission.  British authors and British publishers called this activity “piracy,” but in the U.S. there was a different name for it.  It was the public domain.

In his new book Without Copyrights: Piracy, Publishing and the Public Domain (Oxford University Press, 2013), law professor (and one-time professor of English Literature) Robert Spoo details the legal and the literary situation that modernist British authors faced because of the narrowness of American copyright or, alternately, the expansiveness of the American public domain.  Just to take one example, Virginia Woolf’s early novels were published in the U.S with substantial changes from their U.K. editions, because it was believed that revised American editions could get U.S. copyright even if the original edition had failed to meet the manufacturing requirements.  Woolf instructed her friend Lytton Strachey, for example, to make lots of revisions because her American publisher suggested “the more alterations the better — because of copyright” (Spoo, p. 95).  Joyce and Pound were both published in fragmentary format in magazines because of the (unproven) theory that such publication could stake out a copyright claim while avoiding the difficulties and expense of U.S. printing and binding.  It is fascinating, in my opinion, to see how the actual experience of literature was shaped for American readers by the strictures of the copyright law.

Whether because copyright for foreign works was simply unavailable (as it was prior to 1891) or because of the rule that English-language works by foreign nationals had to be typeset, printed and bound in the U.S. in order to enjoy copyright here (not fully repealed until 1986), lots of well-known works were in the American public domain in those days.  And in spite of the frequent resort to the word piracy, this was a perfectly legal situation, created intentionally to protect American publishers and printers.  As nineteenth-century copyright scholar Eaton Drone wrote:

[I]t is not piracy to take without authority either a part or the whole of what another has written, if neither a statute nor the common law is thereby violated… Hence, there may be an unauthorized appropriation of literary property which is neither piracy nor plagiarism, as the republication in the United States of the work of a foreign author.  This is not piracy, because no law is violated; and, without misrepresentation as to authorship, it is not plagiarism. (Quote by Spoo, p. 23)

Then, as now, accusations of piracy were thrown about rather irresponsibly, and Drone sought to clarify the situation.

Over time, publishers developed a system called “courtesy of the trade” which took the place of copyright protection for foreign authors.  That system had two prongs — the offer of some form of payment to the foreign author of a reprinted work and a “gentleman’s agreement” amongst U.S. publishers that others would not “jump the claim” of a publisher who had announced the intention to reprint a specific author. Although this was referred to as courtesy, it was really sharp business tactics, and it was not particularly fair to the authors.  They were not in a strong negotiating position as to the fees they were paid; they pretty much had to “take it or leave it,” especially since the system made it very difficult to shop their work to multiple American publishers.  And, of course, the system was used to create informal monopolies, which excluded competition and drove up prices.  In some ways the system of trade courtesy reminds me of the current situation for academic publishing.  Although lip-service is paid to the rights of scholarly authors by publishers, their work is appropriated without payment through a coercive system in which they had little option, until recently.  Such publication is not piracy, as Drone tells us, but it certainly is a form of free-riding, coupled with an effective monopoly that keeps prices on the sales side artificially high.

The public domain, of course, is no longer the wide open commons described by Spoo, where most works published abroad were free for anyone to reprint or otherwise use within 90 days of publication unless the authors met onerous requirements.  Today our public domain is almost as constrained as it was free-wheeling for much of our history.  Today, virtually no published works are entering the U.S. public domain; our cultural heritage is basically locked up.  And figuring out what is and is not in the American public domain is just as difficult today as it was for Ezra Pound or Charles Dickens.  As Spoo writes about contemporary international copyright law,

Far from unifying the global public domain, however, recent laws enacted in the United States and Europe only guarantee its continuing disharmony and fragmentation.  Worldwide availability of modernist works is threatened by a tragedy of the uncoordinated global commons, a congestion of divergent durational terms and other rules that impede the free use of works created nearly a century ago. (p. 8)

In the context of this confusion, it is all the more laudable that some groups are making continuing contributions to the public domain.  I began reading Spoo’s book shortly after returning from a meeting about the Copyright Research Management System that is an ongoing project of the HathiTrust.  CRMS is methodically researching books that fall into the “doubtful” categories of U.S. copyright — periods of years during which a published work might still be protected or might be in the public domain.  Since the beginning of the U.S. project in 2008, nearly 150,000 titles have been identified as public domain.  These are works that can be made available to the public without any harm to rights holders.

There is nothing underhanded about this project, as there arguably was about unauthorized reprinting by American publishers of unprotected foreign works.  Instead, this research provides a pure benefit.  Most of that benefit is in the ability to open up new works to the public that were previously closed simply due to lack of data.  Another part of the benefit, however, is in the fact that information is being gathered that is beneficial to rights holders and to future users.  As it determines that many books are in the public domain, the CRMS project has also determined that a significant number of the books it has researched are still in copyright, which is important information to know.  Even the fairly large category of “undetermined” is beneficial.  Although these books are not able to be opened to the public domain, there is now better data about these titles and the gaps in our knowledge about them have been identified.  Knowing what we don’t know, to paraphrase Don Rumsfeld, is itself a step forward.  HathiTrust should be proud of the work that it has done and continues to do, opening books to the public domain and gathering data that will clarify the contours of the public domain into the future.

The public domain is a changeable space, as Robert Spoo shows eloquently in Without Copyrights.  Changes in law, changes in the practices of authorship and publishing and even the cost of paper can influence what is, or is not a public domain resource.  As with the weather, many people complain about the vagaries of the public domain, but do nothing about them.  Spoo and the HathiTrust are each, in very different ways, doing something to strengthen our notions about those resources that are the vital common property of us all.




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