How Writers Coped Without Copyright

What would happen if copyright didn't protect against piracy? The answer can be found in history.

Without Copyrights: Privacy, Publishing, and the Public Domain, by Robert Spoo, Oxford University Press, 355 pages, $35

What would happen if authors and publishers could not count on copyright to protect them from piracy? History hints at the answer. From the founding of the United States until well into the 20th century, domestic copyright laws generally denied foreign authors any form of legal redress. Yet as the legal scholar Robert Spoo explains in Without Copyrights, they developed other stratagems to recoup the costs of writing, producing, and marketing their works.

It wasn't simple, and it wasn't always pretty, but it kept the American public well supplied with global literature. In Spoo's able recounting, moreover, it gave rise to some entertaining tales of literary brawls and criminal obscenity.

Until the Chace Act was passed in 1891, only citizens and residents of the U.S. could qualify for American copyrights. Even thereafter, for another 60 years or so, domestic laws continued to deny copyrights to non-American authors who first manufactured or published their works abroad, or who failed to satisfy the stringent statutory formalities of U.S. copyright law. Few foreign authors even tried to run that legal gantlet; many who tried nonetheless failed. Through these openly and avowedly protectionist provisions, U.S. copyright law subsidized domestic publishers, typesetters, printers, binders, and readers. It also enriched the public domain with the works of foreign authors.

Spoo provides a considerable service simply in recreating that lost legal world, which cannot fail to seem bizarrely xenophobic to anyone familiar with how the law works now. (For the most part, copyrights automatically apply across national boundaries.) But that merely sets the stage for Spoo's main task: describing how authors and publishers adapted to a land without copyright.

Especially prior to the Chace Act, publishers relied on voluntary and extralegal (but nonetheless quite effective) norms developed under the name of "trade courtesy," a practice through which many of the larger U.S. publishing houses acted as if foreign authors enjoyed domestic copyrights anyway. Reputable publishers would respect any peer's claim—typically made via an advertisement in a trade journal—to have purchased the advance sheets of a new book from its overseas publisher or to have reached an "first publication" agreement with the author.

Punishments for breaching trade courtesy ran from verbal jousting to public shaming (usually via missives in the same trade journals that carried first publication claims) to predatory pricing (by which the rightful publisher would sell at a loss to deny its counterpart any profits) to retaliation (by poaching on the foreign titles claimed by the offending publisher). Notably absent from this list of sanctions: lawsuits.

Trade courtesy developed into a coherent and elaborate system of informal norms, giving U.S. publishers the confidence to risk printing, marketing, and distributing foreign works unprotected by copyrights. It also worked to the advantage of foreign authors, who won payments from U.S. publishers and new readers. Trade courtesy did not afford complete control over unauthorized reproductions, of course; not even copyright can promise that. Rogue publishers flouted the rules and flooded the market with shoddy editions of especially popular works. Though denigrated as pirates by their more respectable counterparts, the cheap reprinters proclaimed themselves as champions of the public against a conspiracy in restraint of trade. Through it all, foreign authors kept writing, domestic publishers kept printing, and the American public kept reading.

Though Spoo does an able job of describing trade courtesy, his real interest lies elsewhere. Trade courtesy declined in the late 1800s due not only to the Chace Act but to the rise of antitrust laws and of literary agents—who, to the chagrin of domestic publishers, helped foreign authors navigate the hazards of U.S. law. Though the informal practices of trade courtesy lived on in diluted form, federal and state laws had a larger impact on foreign modernist authors, such as James Joyce and Ezra Pound, and their U.S. publishers.

The problem, in brief: Though the Chace Act finally allowed foreign authors to enjoy U.S. copyrights, anti-obscenity laws made it especially risky for avant-garde authors to do so. To qualify for domestic copyright protection, foreign authors had to carefully arrange to have their works published at least as early in the United States as abroad and to officially register their works with the U.S. Copyright Office. But by so involving themselves in the local publication of their works, foreign authors and their authorized publishers rendered themselves susceptible to prosecution if their works were obscene under U.S. law. That proved all too likely for modernists, who relished flouting convention.

Spoo spends considerable time laying out the details of this legal conundrum, an exercise that affords the reader many a good tale of elaborate subterfuges, high-profile litigation, and racy publications. Few other works offer so detailed an account of how law and culture interact. Far from just a dry legal scholar, Spoo clearly knows and loves modernist literature, and he convincingly argues that little-known quirks of U.S. law had a powerful impact on how the world came to receive such canonical novels as James Joyce's Ulysses and D.H. Lawrence's Lady Chatterley's Lover.

Spoo's enthusiasm sometimes transports him beyond the patience of lay readers. Only hardcore fans of the poet Ezra Pound will find his somewhat puerile musings on the ideal form of copyright law interesting. Yet we must allow a specialist such as Spoo such liberties. It seems a small price to pay for so complete an account of an unjustly neglected corner of history.

Spoo cannot fully answer the question of what would happen if writers and publishers could not count on copyright to protect them from piracy. After all, the foreign authors Spoo discusses faced the denial of their copyright claims only in the U.S.; in their home countries, they enjoyed all the usual privileges of intellectual property law. There, they and their local publishers could risk putting their works before the public without undue worry that pirates would step in to reap the benefits of their labors. So Spoo's book cannot teach us what would happen if copyright disappeared from the entire world.  It can, however, reveal what happened when it disappeared from some people, in part of the world.