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Copyfights, circa 1842

JA October 12

First published in Newsreel Vol 69:3

In the words of the Propellerheads and Shirley Bassey, this all might be just a little bit of history repeating. The debate over the digitisation of intellectual property has been in full swing for some years now—one only has to think of the furore surrounding the Google Books project to realise how deeply these issues are felt. Yet as it turns out things might not have been so very different for authors and publishers some two hundred years ago.

While literary works were generally protected under domestic legislation during the nineteenth century, there was no set regime for international rights. American publishers, for example, were free to reprint novels produced by their English counterparts without having to pay a cent in royalties. Harper & Brothers, a company that would later morph into HarperCollins, was one of the largest producers of these ‘railway’ novels—reprinting works by Rudyard Kipling and Charles Dickens, among others.

Needless to say, this unrestricted market did not sit well with everyone. Dickens in particular was staunchly opposed to the lack of regulation and actively campaigned for international copyright. He wrote to his brother-in-law, Henry Austin, in 1842:

Is it tolerable that besides being robbed and rifled an author should be forced to appear in any form, in any vulgar dress, in any atrocious company; that he should have no choice of his audience, no controul [sic] over his own distorted text … I vow before high heaven that my blood so boils at these enormities, that when I speak about them I seem to grow twenty feet high, and to swell out in proportion. ‘Robbers that ye are,’ I think to myself when I get upon my legs, ‘here goes!’

Rudyard Kipling was similarly incensed, expressing his anger at Harper through the poem ‘The Rhyme of the Three Captains’: ‘Does he steal with tears when he buccaneers? ‘Fore Gad, then, why does he steal?’

The lack of regulation was a sticking point for many American authors as well. Unauthorised editions, which did not pay royalties, were much cheaper than books by local writers, who were worried in turn that their sales would suffer. Many copyright ‘leagues’ or clubs were formed in protest, among them the American Copyright League, which operated under this rather curious motto written by poet James Russell Lowell: ‘In vain we call old notions fudge, / And bend our conscience to our dealing; / The Ten Commandments will not budge, / And stealing will continue stealing’. Strangely enough the ‘old notions’ Lowell refers to are the idea that literary works were not entitled to protection, a concept that appears almost radical now.

Yet US authors were also well aware that local manufacturers, printers and typesetters benefited from the industry growth. Writers such as Mark Twain and Walt Whitman were careful to take a more cautious approach as they did not want to appear elitist or greedy, much in the same way that high-earning musicians today are criticised when they complain about fans freely downloading songs.

Another similarity, as author Mathew Pearl observed in a lecture at Harvard Law School, was the use of language to create a legal imperative. Technically, at the time, Harper & Brothers was not breaking the law. If anything, there was some benefit to making books cheaply available to a generation of new readers. It was left to writers to craft a ‘shadow copyright regime’ based on the poetics of piracy and theft, which was later translated into legislation. Today, it would seem, we are caught up in a struggle to do the reverse.


 

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