Article Index

 

 

Robert Spoo.
Without Copyrights:
Piracy, Publishing, and the Public Domain.
Oxford UP, 2013.
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review by Mark Byron

 

 

MODERNIST COURTESY

 

without copyrightsRobert Spoo’s Without Copyrights provides a lucid, comprehensive account of United States copyright law and its effects upon the publication and circulation of Modernist literary texts. This incisive account completely revises a number of basic assumptions concerning the public life of twentieth century literature. To discover the legislative and judicial status of copyright law, obscenity, and libel as these apply to some of the most celebrated texts and authors of Modernism, has one reflect on the state of innocence with which the production and circulation of such literature had previosuly been regarded. Whilst Spoo’s focus is squarely upon United States law, he demonstrates how this it bestowed direct and specific material effects upon literature from across the Atlantic, both in English and in other languages. The immense difficulty for foreign authors (or American authors who published overseas) to register copyright of a work in the United States – right up to its joining the 1886 Berne Convention as recently as 1989 – bears profound implications: what percentage of literary works in the avant-garde catalogues of New Directions, Grove, City Lights and others were actually under no copyright protection at all at the time of their American publication? What was to stop predatory publishers from harnessing the goodwill built up by James Laughlin, or Barney Rosset and bringing out works yet unpublished in the United States without authorial blessing or remuneration? It’s mind-boggling, not least due to a collective oblivion to such a stark possibility.

Spoo’s study opens up entire dimensions of literary publishing in the United States, from the sociology of the industry as it developed in the nineteenth century, its legal and quasi-legal dealings with author’s rights and publishers’ courtesy, and the oftentimes uninformed actions of well-meaning patrons and publishers (as well as some canny marketing of author-genius-as-martyr) of the most significant Modernist texts. The legal background to the significant problems with copyright in the time of Modernism is established in the nineteenth century convention of publishers’ trade courtesy.

The initial 1790 Copyright Act gave some protection to American authors whose works were published in the United States, but, as with subsequent revisions in 1831 and 1870, expressly denied protection for foreign authors and works imported into the United States. The avowed purpose of these provisions was to encourage learning and creativity by virtue of the circulation of cheap texts, as well as to provide incentives to the reprint trade. The practice of "piracy" thus flourished, whereby the perfectly legal but ethically dubious practice of reprinting and selling foreign texts saw authors receive no compensation for their labours. Following from widespread piracy of such authors as Walter Scott, Tennyson, Thackeray, George Eliot, Wilkie Collins, Oscar Wilde and others, agreements between such publishing houses as Henry Holt, Charles Scribner’s Sons, Macmillan, Harper, and G. P. Putnam’s Sons developed into a code of honour by which publishers would respect announcements of future publications and the signing of authors, as well as develop a system of settlements and arbitrations in cases of potential conflict. Conversely, transgressors of this gentlemanly code would suffer punishment by the spread of malicious gossip, advertised protest, or even collective exclusion from the industry. This basic tension between the public commons and notions of proprietary interest was to persist into the twentieth century.

The competing interests of the public domain and intellectual property rights produced a complex situation for Modernist authors publishing English-language texts outside the United States. The 1891 Chace International Copyright Act provided protection for foreign language works, but British and Irish works were not afforded the same protections under this act or the 1909 U. S. Copyright Act (despite British law having offered protection to all foreign authors, including Americans, for decades). Instead they were compelled to follow a stringent series of requirements to qualify for copyright protection. Publications were required to meet a manufacturing clause, whereby texts had to be typeset, printed and bound in the United States – a crude form of protectionism for the publishing industry. This requirement was partially mitigated by the facility of ad interim copyright protection for books published abroad: such publications deposited in the copyright office in Washington, D. C. within sixty days of foreign publication were afforded a four-month window within which to satisfy the manufacturing clause. Satisfaction of these conditions provided the full initial twenty-eight-year term of copyright, renewable once upon application in the final year of the initial term. Finally, any text published within the United States was required to display prominently a copyright notice for protection to be extended. Improperly placed or absent notices rendered copyright void, as did restrictions on the importation and manufacturing of texts for reasons of customs or postal seizure, or litigation on such grounds as obscenity. Many Modernist texts first published in Europe failed to gain copyright protection in the United States for some or all of these reasons, and the protocols of publishers’ courtesy were quickly overrun by unscrupulous "bookleggers" (although again it must be pointed out that such "piracy" was not illegal, but was considered deeply unethical in denying royalties to authors, thus disregarding their intellectual labours).

This legal and historical background is essential to understanding just what was at stake in bringing Transatlantic Modernism to the United States: the profound legal and practical impediments suffered by particular authors and texts; the remedies, legal as well as professional, intended to rectify the loss of royalties through piracy; the gradual reversal in the Transatlantic flow of British and American texts from west to east; and the balance sought by lawmakers, publishers, and authors between public domain and proprietorial rights of authors and their heirs.

Spoo’s examination of Modernist battles with copyright draws on a wide range of examples, but it has both Ezra Pound and James Joyce at its heart. Pound had run into the customary problems of copyright protection (or its absence) with his earliest collections of poems published in Italy, Paris and London, as well as with the deeply ambiguous copyright protection afforded to serial publication of individual poems and essays (the question hinging on whether copyright protection was afforded to each individual contribution or merely to their editorial arrangement, and whether copyright was held by authors or by journal editors). Pound’s attempt to establish the journal The Exile nearly ran aground at the outset due to the strict manufacturing conditions – and greatly increased costs – incumbent upon publications seeking copyright protection in the United States. His efforts in trying to protect the published work of T. S. Eliot and Joyce, among others, gave him signficant insights into the copyright "racket" and its enabling of unauthorised "piracy" of avant garde literary works at a time when their cultural significance (not to mention their commercial value) was beginning to come into sharper focus.

Pound’s interactions with some of the major players in Modernist publishing in the United States also exposed him to a latter-day form of trade courtesy, from which Yeats, D. H. Lawrence, Eliot and Joyce also benefitted. But his profound scepticism towards the network of official prohibitions – passport controls, vice societies, postal and customs seizures, film production codes, and of course Prohibition itself – found expression in a concerted attempt to intervene in the legislative agenda of copyright in the United States. Spoo dedicates a fascinating chapter to the explication and analysis of Pound’s draft copyright statute, "Copyright and Tariff," published in two instalments in The New Age (September / October 1918). As Spoo claims in the opening pages of his book: "Pound was the theorist of modernism’s encounter with copyright and piracy" (11). Pound wove together two apparently contradictory forces in his statute: a form of perpetual copyright for authors and their heirs, on the provision that works be kept in print at fair prices; and freedom to publish works within the literary commons, including those works that had lapsed from copyright protection due to inattentive or otherwise obstructive measures by authors and heirs. Spoo makes the point that this combination of protected pecuniary reward for intellectual labour and the aspiration towards ‘a utopia of fluid international communication’ was in line with Pound’s views on the circulation of knowledge (evident in ABC of Reading, for example) and the circulation of currency, especially in his endorsement of the theory and practice of stamp scrip and social credit.

Pound’s lobbying for changes to United States copyright law provides the background for his support of Joyce in the obscenity litigation arising from serial publication of Ulysses in TheLittle Review in 1919 and 1920. This episode was merely the forerunner to Joyce’s protracted battle with the "booklegger" Samuel Roth, who serially published episodes of Ulysses in his magazine Two Worlds Monthly and then sought to publish the entire novel without Joyce’s permission in 1925. The story of Joyce’s battle with Roth is well known, although Spoo straightens out a surprising number of misconceptions. An irony of copyright law is at the heart of the case: Joyce’s work, as with very many other major literary works first published in Europe, never had copyright protection during its author’s life, and only came into such protection when the United States became a signatory of the Berne Convention in 1989. In other words, Roth had no need to seek Joyce’s permission to publish his work, as it was at all times prior to 1989 in the United States public domain.

Ulysses came to be in the public domain soon after publication, that is, in April 1922 following the lapse of the sixty-day ad interim clause (thus making moot the four-month window to fulfil the 1909 Copyright Act’s manufacturing clause to publish the book in the United States). Incidentally, Roth’s piracy extended well beyond Joyce to Pound, Eliot, and others, invoking international protest and sanctions from writers and the publishing community along similar lines to nineteenth-century sanctions against violators of trade courtesy. Pound did not sign the international petition drawn up to condemn Roth, despite his own losses, because he preferred to focus on an unjust law than on individuals who might use it to their immediate advantage.

A lawsuit, Joyce v Roth, followed in 1927-28, not on the grounds of copyright infringement but based upon a New York civil rights statute concerning the unlawful exploitation of Joyce’s name for commercial gain. This introduced the idea of publicity rights (and the right to privacy) into Modernist literary consciousness, pioneering a sense of literary celebrity as a form of intellectual property. Paradoxically, the suit opened the way for Joyce’s celebrity, and that of his book, to flourish. Spoo defines the principles at stake in the litigation, where the relevant points of law and the details of the trial are given adequate treatment for the first time. This litigation shaped how Joyce’s legal representation, Morris L. Ernst, approached the more famous obscenity litigation to follow in 1932, presented from the viewpoint of the problematic copyright status of Ulysses (i.e. its uncopyrighted status). This status engendered potential problems for Random House – it opened the way for unscrupulous piracy upon the book’s clearance from charges of obscenity – but Bennett Cerf engaged trade courtesy to detain potential (legal) pirates and to provide a clear run to the Random House edition of Ulysses in 1934.

There is a substantial secondary literature – some of which is Spoo’s own – dealing with the troubled career of Joyce’s novel and its battle with obscenity law and customs seizures. Kevin Brimingham’s The Most Dangerous Book: The Battle for James Joyce’s Ulysses (Penguin, 2014) deals with the tribulations of composing and publishing Joyce’s novel, including the aesthetic, ethical, economic and legal hurdles that needed navigating from the time of first composition to the legal battles in New York and elsewhere on the charge of the novel’s obscenity. Bruce Arnold’s The Scandal of Ulysses, published two decades earlier (Sinclair Stevenson, 1991, revised edition Liffey, 2004), charts some of the same territory as well as the battles over editions of the text within the scholarly community, most notably during the "Joyce Wars" between Hans Walter Gabler and John Kidd (and others) in the 1980s and 90s. Both of these trade books provide essential context for the chapters in Spoo’s volume dealing specifically with Ulysses, but the wider implications of the lack of copyright protection for authors generally, and various formal and informal remedies applied from within the publishing industry and by legal precedent over the last 150 years, makes Spoo’s contribution a scholarly masterwork.

The United States eventually joined the Berne Convention in 1989 but recent laws enacted in US and Europe have led to an uneven patchwork of copyright conditions for authors on either side of the Atlantic. Perhaps most notoriously, the Sonny Bono Copyright Extension Act of 1998 (also known as the Mickey Mouse Protection Act due to the influence of the Disney Corporation, but properly named the Copyright Term Extension Act) extends copyright protection to seventy years after the author’s death, regardless of a work’s date of publication. Its enactment had the immediate effect of seeing literary works return to copyright, some of which have subsequently returned to the public domain. A similar seventy-year rule applies in the European Union, but with slightly different outcomes. Globally, we live with a patchwork of copyright protections that do not translate well across jurisdictions. The emergence of digital media over the last two decades significantly complicates the issue, especially with regard to the policing of copyright infringement. Large scale political will and cooperation is lacking, producing what Spoo calls ‘a tragedy of the uncoordinated global commons.’

Spoo’s meticulous research is evident everywhere: he provides careful and essential definition and discussion of legal and technical terms (trade courtesy, the legislative history of copyright) in which the clarity and directness of his prose rarely wavers. The book is a model of legal and literary scholarship, and represents a compelling example of their successful unification. This subfield of literary / legal studies is of essential import to all scholars of Modernism. Without this clear explication of the principles at stake and the consequences of their neglect or enforcement, scholars are potentially unprotected and ill-informed regarding the matter of rights and obligations in Modernist textual production, as exposed as many of the authors found themselves to be. This wonderful book provides a means of navigating such rocky terrain, and opens up an entire zone of inquiry for Modernist Studies by demarcating apropos case law, legislation, and jurisprudence. The relative innocence demonstrated by Joyce, Pound and others with regard to their legal rights and obligations in seeking copyright is matched by the empty space in scholarly understanding of such matters, as well as a relative lack of awareness of their profound implications. Spoo’s study will save a few scholars from major misunderstanding and embarrassment, for which Modernism Studies owes him a debt of gratitude.