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The Book as Intellectual Property: 19th Century

During the early and middle part of the 19th century, amendments were made to the Copyright Act of 1790. In some cases, the elements were consolidated. For instance in 1870, the term was extended to twenty-eight years. The term could be extended fourteen years beyond the death of the author. In addition over time, other items were added to the copyright law such as illustrations, musical compositions, and photographs.

During the 19th century, much discussion took place in the courts regarding the definition of copyright. According to Bowker (1912, 31), Lord St. Leonards in the case of Jefferys v Boosey (1854) stated

"when we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to that composition, just as he has a right to any other of his personal property; but the question of the right of excluding all the world from copying his own composition after he has published it to the world, is a totally different thing."

Perpetual Rights

The first landmark decision by the U.S. Supreme Court regarding copyright was the case of Wheaton v. Peters. The March 19, 1834 decision held that

"an author has perpetual rights in his unpublished works, but that after publication his rights are limited by the statutory provision imposed by the Congress, including deposit requirements." (Rudd, 1971)

Anti-Copyright Sentiments and A Culture of Reprinting

Not everyone was a supporter of the copyright law. Thomas Babbington Macaulay, a British historian did not consider copyright a form of property. He spoke to Parliament in 1841 stating (Ringer, 1974, 18)

"copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. The effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good."

Ringer (Ringer, 1974, 19) notes that

"Macaulay pointed out that, if the arguments for extending the copyright term were carried to their logical conclusion, the result would be a perpetual copyright, with the benefits going to monopolists rather than the author or his immediate family. His pithy if hopelessly simplistic conclusion: 'The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers'."

According to McGill (2013, 2), the period between 1834-1853 was an era of reprinting. She notes that

"in this period, legal and political resistance to tight controls over intellectual property produced a literary marketplace suffused with unauthorized publications. Not only was the mass-market for literature in American built and sustained by the publication of cheap reprints of foreign books and periodicals, the primary vehicles for the circulation of literatyre were uncopyrighted newspapers and magazines."

Authors and Copyright

copyrightMany authors were concerned about copyright and were careful to followup on their copyright applications. Such was the case with Walt Whitman. The first edition of Leaves of Grass was registered on May 15, 1855. In 1855 the copyright notice on the reverse of the title page read "Entered according to Act of Congress in the year 1855, by WALTER WHITMAN, in the Clerk's office of the District Court of the United States for the Southern, District of New York."

Over the years, Whitman was careful to update his copyright even when creating derivative works including nine editions of Leaves of Grass. In 1860 the copyright notice read "Entered, according to Act of Congress, in the year 1860, by WALTER WHITMAN, In the Clerk's office of the District Court of the Massachusetts." Notice the change of state.

The final edition known as the "death-bed" edition lists all of the dates and publishers. It also contains a note indicating that "which last-named copyright (holding good to 1919 - then, on application, continued 14 years further) expires May 19, 1933". The complete version of the last copyright is shown on the right. Click the image for a larger version.

To learn more about Walt Whitman, go to The Walt Whitman Archive. Compare different editions of his book Leaves of Green.

The images below show a few title pages.

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The images below show copyright records book registrations from the Copyright Office at the Library of Congress. Below left shows a page from the 1855 record book for Leaves of Grass and the image on the right shows the 1883 registration (click the images for a full-sized view). To see what the records books looked like, go to What Do Copyright Records Look Like?

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Read Nierman, Judith (May 2005). Walt Whitman's Leaves of Grass. Copyright Notices. IUPUI students can view the article online. Also, read Leaves of History: Some Interesting Stuff to learn about the Copyright records.

The Library of Congress Copyright Registration Office

A unit of the Library of Congress, the U.S. Copyright Office is an agency of the U.S. federal government responsible for administering the copyright law. They are also charged with protecting intellectual property rights, providing information to the general public related to copyright law, and advising Congress in matters associated with copyright law changes, international copyright agreements.

Prior to 1870, "the clerks of 44 judicial districts in the United States registered claims to copyright and issued certificates" (Evina, 2005). President Grant signed a law in 1870 that centralized copyright registration at the Library of Congress. This centralized approach was intended to ensure uniformity in records. Librarian of Congress Ainsworth Rand Spofford became the defacto Register of Copyright causing a dramatic increase in the workload of his office. Spofford requested that Congress provide additional assistants to handle the copyright registrations.

Copyright Textbook

A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States by Eaton S. Drone (c. 1842-1917) was published in 1879. This landmark work was the first textbook in this area. It provides an overview of the history and key components of copyright law during this time period. In the preface Drone states

"meaningless, inconsistent, and inadequate statutory provisions, ambiguous, erroneous, and conflicting decisions cover the law of copyright with doubt, difficulties, and confusion."

Authorship and Copyright

In 1883, Lord Justice Cotten in Nottage v Jackson defined authorship as "originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph."

Ideas and Copyright

In Baker vs Selden (1879), the court held that ideas, in and of themselves, are not copyrightable. The Supreme Court held that the idea of using accounting blanks in a book is not protected. The court noted that an illustration is the essence of an idea and the product of genius for the pleasure of observers. In similar cases, the court found that writing and index systems are not copyrightable. It was also found that reports of current events are not copyrightable.

However, an idea that is expressed in writings or drawings is eligible for copyright protection. However even in this case, the idea still can't be copyrighted.

Photographs and Copyright

wildeAn act extending copyright protection to photographs was approved on March 3, 1865.

In the 1884 the landmark Burrow-Giles Lithographic Company vs Sarony Supreme Court case, the court upheld copyright protection to photographs. In earlier laws, photographs weren't considered a work of art.

The court case focused on a photograph of Oscar Wilde shown on the left.

International Copyright Issues in the United States

In the United States, the issue of international copyright was introduced a number of times in the 19th century. In 1837, a group of 56 well-known British authors petitioned for protection of foreign authors and in 1842 Charles Dickens made a number of speeches in the US regarding international protection of intellectual property. In 1853 a treaty was negotiated between the US and England detailing a reciprocal agreement on copyright between the two countries, but it was tabled.

The International Copyright Association was formed on April 9, 1868 to promote international copyright protection.

Tauchnitz and International Copyright Issues Worldwide

The issue of international copyright was being discussed around the world. Some companies such as Tauchnitz in Germany were careful to pay royalties even when no copyright protection was available.

Tauchnitz was the name of a family of German printers. Karl Christoph Tauchnitz (1761-1836) established the business in Saxony and ran it until 1865 when it was taken over by his son Karl Christian Phillipp Tauchnitz (1798-1884). Christian Bernhard, Freiherr con Tauchnitz (1816-1895) was the nephew of the original Tauchnitz and founded his firm known as Bernhard Tauchnitz in 1837.

When the Tauchnitz started their English-language editions in 1841 there were no international copyright treaties with England or the United States. Although their works were authorized, they weren't protected from copyright infringement because no international laws were in place.

Technically, Tauchnitz illegally published books by British and American authors even though they paid the authors. Many travelers bought the books cheap in Germany and smuggled them over the border into Britain.

Continental States treaties were signed with Britain, Prussia, Saxony, France, and eventually most of the European states in the late 1840s into the 1850s. In these locations, the "Tauchnitz Authorized Edition" became the copyright edition.

The Tauchnitz Edition is a catalog of thousands of books available in English and German in 1884.

The book Of English Literature in the Reign of Victoria by Henry Morley is an example of one of the thousands of books published by Tauchnitz

The images below are from the front matter of Of English Literature in the Reign of Victoria by Henry Morley.

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Explore the first several pages of the book Of English Literature in the Reign of Victoria by Henry Morley. It provides an interesting glimpse into the arrangements made by Tauchnitz Publishers to reprint works. They even provide pages of author signatures (shown above) showing the support of the authors for this reprint. Think about the relationships among the countries involved at this time.

International Conventions

A diplomatic conference was held in Paris in 1880 to discuss property protection. The Paris Convention for the Protection of Industrial Property was signed by 11 countries in 1883. One of the first international intellectual property treaties, it established a union for the protection of industrial property.

Authors, academics, and diplomats met in Berne, Switzerland to begin planning a multilateral copyright treaty in 1884. The premise was that each national could maintain their own copyright law, however minimum standards would need to be met to participate. In addition, all members would agree on basic international cooperation. The United States representatives participated in the discussions.

On September 9, 1886, a union of countries (International Copyright Union) was established at a conference at Berne. Known as the Berne Convention, the group was formed to maintain a comprehensive, international system of copyright protection. An international copyright agreement developed. Although it was signed by 10 countries, the United States did not sign.

In 1893, the Paris and Berne Conventions merged and were located in Berne. They adopted the title United International Bureaux for the Protection of Intellectual Property. The group continues to be administered by the World Intellectual Property Organization (WIPO) today.

The cartoon below titled The Pirate Publisher—An International Burlesque that has the Longest Run on Record, from Puck (1886) satirizes the then-existing situation where a publisher could profit by simply stealing newly-published works from one country, and publishing them in another, and vice-versa. Click the image for an up-close view. Notice that Mark Twain is labeled on the left.

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readSkim Eva Wirten's (2011) article A diplomatic salto mortale: translation trouble in Berne, 1884-1886. Book History, 14, 88-109. This article provides insights into the perspectives of various representatives to the Berne Convention. IUPUI students can view the article online.

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Skim Shafquat Towheed's (2007) article Geneva v. Saint Petersburg: two concepts of literary property and the material lives of books in Under Western Eyes. Book History, 10, 169-191. This article explores an example of the impact of international laws on a specific book. Go to Archive.org and locate another book written during this time period. Examine the copyright information in the front matter of the books. Think about the implications of the international copyright laws. IUPUI students can view the article online.

Chace International Copyright Act of 1891

There was a need for an international copyright law in the United States. According to West (1992),

"throughout the nineteenth century American publishers had battened on unauthorized resettings of British books. This practice had robbed British authors of royalties and had placed American authors (who were protected by domestic copyright statutes and thus had to be paid) at an unfair disadvantage in competition with their British counterparts. The situation had been helped somewhat by an arrangement known as "Courtesy of the Trade", an informal agreement among major American book-publishing houses not to poach on each other's British authors. Courtesy of Trade, however, was only a gentlemen's agreement, and it tended to break down whenever the American book market descended into one of its periodic price wars or whenever the British book in question was a particularly attractive prize."

Both British and American authors were in support of an international copyright law. For British authors to obtain copyright protection in the United States, the book had to be registered in the United States using an American collaborator's name.

Mark Twain felt strongly about the rights of authors and the need for international copyright protection. The copyright registration records for books like The Adventures of Tom Sawyer and Adventures of Huckleberry Finn are in the oldest segment of the Copyright Card Catalog. According to Evina (May 2004), Twain lobbied hard for international copyright protection.

Twain was also aware of the laws in other countries. For instance, to protect his book The Prince and the Pauper from unauthorized distribution in Canada, he obtained residency in Canada so he would be covered by their laws.

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The image below left shows the title page to The Prince and the Pauper published in Montreal in 1881. The image above shows the Canadian copyright notice on the back of the title page. The image below right shows Mark Twain in 1867.

princemark twain

On March 3, 1891, an United States act amending the revised statutes included provisions for international copyright. Jonathan Chace of Rhode Island introduced the bill. Known as the Chace International Copyright Act, President Harrison signed this first attempt at reaching outside the United States. Prior to 1891, foreign materials were not protected in the United States. The act dealt with imports, translations, books in foreign language as related issues. According to Nierman (2005),

"foreign authors could claim copyright protection in the United States only if their works were typeset, printed and bound in this country. Much of the rest of the world adhered to the Berne Convention, which provided that signatory countries grant the same copyright protection to foreign as to domestic authors. But the United States did not, and as a result, U.S. works usually lacked protection abroad."

An important aspect of the International Copyright Act of 1891 was the "manufacturing clause" requiring all copies of foreign works be printed from type set in the United States in order to have protection. This clause was a concession to American printers.

saintsSaints and Sinners by British author Henry Arthur Jones was the first foreign work registered under the new law on July 3, 1891.

The preface of the book explains the impact of the new law. It states. "The passing of the American Copyright Bill is a fact of the highest import for English playwrights and for the future of the English drama, - that is, if the English drama has a future" (1891, v).

The image on the left show the publishing information on the title page of Saints and Sinners. Notice that both London and New York are listed.

Government Documents Copyright Act

In the late 19th century many government documents were being produced. On January 12, 1895, Congress established the Printing and Binding Acts dealing with the printing and distribution of public documents. It stated that

"no publication reprinted... and no other Government publication shall be copyrighted."

United States Copyright Office

solbergOn February 19, 1897, an act established appropriations for the position of Register of Copyrights. On July 22, 1897, Thorvald Solberg (shown on right) became the first Register of Copyrights in the United States. Appointed by John Russell Young, the Librarian of Congress, Solberg served 33 years.

For a complete list and biographies of the Registers of Copyright, go to Biographies of the Registers of Copyright.

The photo below shows the "copyright deposits in the basement before classifying" at the Library of Congress around 1898.

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