How the United States Stopped Being a Pirate Nation and Learned to Love International Copyright

92 Pages Posted: 19 Apr 2019

See all articles by John Rothchild

John Rothchild

Wayne State University Law School

Date Written: March 10, 2019

Abstract

From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them.

This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more than fifty years of failed efforts. Beginning in the 1830s, the principal opponents of international copyright were U.S. book publishers, who were unwilling to support a change in the law that would require them to pay negotiated copyright royalties to British authors and, even worse from their perspective, would open up the American market to competition from British publishers. U.S. publishers were quite content with the status quo—a system of quasi-copyright called “trade courtesy.” That system came crashing down in the 1870s, when non-establishment publishers who did not benefit from trade courtesy decided to ignore its norms, publishing their own cheap, low-quality editions of books by British authors in competition with the editions published by the establishment publishers. As a result, most U.S. publishers came to support extending copyright to foreign authors as a means of preventing competition from publishers of the cheap editions.

Once the publishers withdrew their opposition, another powerful interest group came to the fore: typesetters, bookbinders, printers, and other workers in the book-manufacturing industries. These groups opposed international copyright unless it were accompanied by rules assuring that they would not be thrown out of work by a transfer of book manufacturing from the United States to England. In the 1891 Act, the typesetters achieved what they sought: a provision requiring books to be typeset in the United States as a condition of copyright. In this way, U.S. copyright law implemented an element of U.S. trade policy.

The manufacturing clause, as this requirement was called, was gradually watered down over the succeeding decades and lingered in the copyright law until 1986. Yet the entanglement of copyright law with trade policy continued, in the World Trade Organization treaty system and elsewhere.

As a major exporter of books, software, movies, and other articles embodying copyrighted works, the United States has sought in multiple forums to strengthen the protections those works receive under the laws of other nations, sometimes provoking pushback from countries that are net importers of intellectual property goods. When pursuing these goals in the twenty-first century, U.S. policymakers would do well to bear in mind this country’s forgotten history as the greatest copyright pirate nation of the nineteenth century.

Keywords: copyright, manufacturing clause, trade courtesy, Berne Convention, International Copyright Act, Chace Act

Suggested Citation

Rothchild, John A., How the United States Stopped Being a Pirate Nation and Learned to Love International Copyright (March 10, 2019). 39 Pace Law Review 361 (2018); Wayne State University Law School Research Paper No. 2019-55. Available at SSRN: https://ssrn.com/abstract=3373042

John A. Rothchild (Contact Author)

Wayne State University Law School ( email )

471 West Palmer
Detroit, MI 48202
United States
313-577-3963 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
45
Abstract Views
208
PlumX Metrics