The 1891 International Copyright Act: Lobbying Behind the Scenes
2021; Bibliographical Society of America; Volume: 115; Issue: 3 Linguagem: Inglês
10.1086/715367
ISSN2377-6528
Autores Tópico(s)Copyright and Intellectual Property
ResumoPrevious articleNext article FreeThe 1891 International Copyright Act: Lobbying Behind the ScenesJames J. BarnesJames J. Barnes Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreDuring much of the nineteenth century, many authors and publishers in Great Britain and the United States acknowledged the need to conclude an international copyright agreement. Americans were aware that their compatriots were pirating popular British authors such as Charles Dickens, while English readers regularly consumed pirated editions of American authors like Washington Irving and James Fenimore Cooper. Especially noteworthy was the wholesale reprinting in Britain of more than a million copies of Harriet Beecher Stowe’s Uncle Tom’s Cabin. To address this problem, two Anglo-American copyright treaties were introduced in the US Senate in 1853–54 and 1880–81 where they had the advantage of not requiring approval by both houses of Congress but only two-thirds of the members of the Senate; however, neither succeeded. Additionally, eleven bills granting international copyright were introduced between 1843 and 1886, but all failed to rally sufficient support.In 1886 the United States sent an observer to Berne, Switzerland, where ten countries (Great Britain, France, Germany, Belgium, Spain, Switzerland, Italy, Haiti, Liberia, and Tunisia) met and agreed to establish mutual copyright protection, but Congress showed little interest in joining the Convention.1When those in favor of Anglo-American copyright recognized that their legislative efforts had repeatedly met with failure, they decided to change their tactics and use their personal reputations and influential contacts to pursue their goal. To this end, a group of committed authors met on 16 April 1883 at the home of Brander Matthews in New York City to discuss ways to move forward. According to Matthews’s memoir,The original members of the Copyright League were all members of the Authors Club; and I believe that it was at the meetings of the Club that the establishment of the League was first broached… . The first meeting of the American Copyright League was held at my house, 121 East 18th Street, on April 16, 1883. The first of the authors to arrive was Henry James, whom I had then the pleasure of meeting for the first time. The second meeting took place a little later at [Lawrence] Hutton’s; and in a few weeks we had collected adherents all over the country… . We chose a strong and energetic executive committee, and James Russell Lowell accepted the presidency.2Everyone at the meeting agreed that it was imperative that Congress enact an international copyright agreement, but they differed about how best to rally support for it. Matthews pointed out that publishers and printers opposed to the idea would not be won over by mere debate or rhetoric. He argued, “it is to the public at large that all argument must be addressed… . Once put the average man in possession of the facts, and these facts speak for themselves; they will convert him.”3 Others thought it would be futile to appeal to the public at large; only a barrage of memorials, petitions, and pamphlets sent to members of Congress would convince them to act. Still others declared that skeptics would be won over only when concerned members became personally involved by going directly to Washington, talking with members of the House and Senate, attending committee meetings, and directly confronting the opposition.Grant White was elected the first chairman of the American Copyright League, with the novelist and poet George Parsons Lathrop (1851–98) as its first secretary. Before assuming this job, Lathrop was the associate editor of the Atlantic Monthly and editor of the Boston Courier newspaper. His wife Rose was the daughter of Nathanial Hawthorne. As secretary, Lathrop was confounded by the reluctance of authors like the historian George Bancroft to openly promote the league while privately favoring its goal.The first opportunity to display the effectiveness of their amended strategy came when William Dorsheimer, a newly elected congressman from New York City, introduced a bill in the House of Representatives advocating international copyright on 8 January 1884. In a letter to Bancroft of 11 February 1884, Lathrop proudly pointed out that 450 authors had shown their support by joining the American Copyright League and begged him to at least encourage others to support the Dorsheimer bill: “Judging from what I hear, I am afraid that Senator Edmunds is not ready to support the bill if it comes to the Senate, so that I hope more than ever that you will find occasion of recommending it to him.” Bancroft replied that he would not permit the use of his name by the league, although he admitted that the bill was “the best which has been offered.” Four days later, Lathrop pleaded with Bancroft to at least allow portions of his letter to be quoted, but Bancroft again refused, saying that his communications were private.4Not to be discouraged, Lathrop continued to keep Bancroft informed of the league’s legislative activities:Although the Dorsheimer Bill providing for international copyright has received the eleventh place on the House calendar, and many members are in favor of its passage, it seems to be difficult—on account of the rules of the House—to proceed to action upon it; and for this reason some of the members of our Executive Committee of the Copyright League think that it would be advisable to introduce the bill in the Senate at a very early day, and secure its passage there, so as to stimulate the House to action on the subject.5Responding to the idea of introducing the Dorsheimer bill in the Senate, Lathrop asked Bancroft if he would be willing to recommend his friend Senator George Franklin Edmunds of Vermont for this job, but again, Bancroft demurred:You are right in supposing Senator Edmunds friendly to the rights of authors. I do not believe he can intend to bring in a separate bill in the Senate. Moreover, in my judgment, to give up the House and rely on a bill in the Senate would be the worst course that could be taken. The bill failed the other day by want of two or three votes only of becoming a Special Order. It is now very doubtful whether it will be reached. If it cannot be reached in the House, still less could a bill sent down from the Senate. The only hope of success will be in bending all efforts upon its friends in the House. To make it a Special Order requires not a majority only, but a majority of two thirds; there lies trouble.P.S. In the worst event, take courage; and repeat the effort till you succeed. This mode of procedure by bill, and not by treaty, is as it seems to me, in itself the best; and the one most likely eventually to succeed.6Dorsheimer had hoped to see his bill passed during the 48th Congress (1883–85), but the members of the American Copyright League were lukewarm in their support. They were especially concerned about the provision that when an author died, the copyright would lapse. Most authors expected that their copyrights would pass to their heirs. Dorsheimer was willing to change this provision but was reluctant to accept other changes, especially the one that required foreign books be set in type and printed in America in order to receive copyright protection there.On 5 January 1885, Representative William Eastin English of Indiana introduced Dorsheimer’s amended bill during the short session, but because Dorsheimer was no longer a member of the House, it died from lack of support.Somewhat to everyone’s surprise, Joseph Roswell Hawley, a respected senator from Connecticut, introduced a bill supporting international copyright in the upper chamber on 6 January 1885, the day after the failure of the Dorsheimer bill in the lower house. Perhaps he thought that his bill had more of a chance in the Senate because he was an experienced legislator, whereas Dorsheimer had been a newcomer. At its annual meeting on 2 November 1885, the American Copyright League endorsed the Hawley bill in a unanimous vote.There was a change in the league’s leadership at this meeting. The renowned poet James Russell Lowell took over the presidency, and George Walton Green replaced George Parsons Lathrop as secretary. Lowell assumed that the title was honorific, and therefore he wouldn’t be called upon to devote much time or effort to the office, as he confided to Charles Eliot Norton:I must be off to New York Sunday to that infernal copyright business. They … left me altogether in the dark till last night—and now it seems they expect an address from me! I was so busy I had almost forgotten it. I never will promise to do anything for anybody again!7Lowell’s testimony included remarks that he had made at a reading by Samuel Clemens, pointing out that in the early nineteenth century only two Americans, Washington Irving and James Fenimore Cooper, were able to live on their earnings, whereas now many writers aspired to this goal, yet they were continually undermined by domestic publishers who reprinted British literature that they sold at incredibly low prices. Lowell concluded plaintively, “this form of property, both foreign and domestic, has been admitted by every civilized country in the world except our own.”8On 21 January 1886, a third copyright bill, given the number S 1178, was introduced in the Senate by Jonathan Chace of Rhode Island. Both bills, Hawley’s and Chace’s, were referred to the Senate Committee on Patents, widely acknowledged as a legislative graveyard. Surprisingly, they were given joint hearings on 28–29 January, 12 March, and 11 April 1886, and the Chace bill was recommended, whereas the committee was mute concerning the Hawley bill.When Chace introduced his bill it was not known that two days earlier he had received the draft of another copyright bill from James Welsh, president of Typographical Union No. 2 of Philadelphia, stipulating conditions that would be required by the printing trades.9 The text of this draft has not survived, but presumably it contained the so-called “manufacturing clause,” requiring that all foreign books applying for copyright protection in the United States must be set in type and printed by American firms. As a result of this ultimatum, Chace’s bill was undercut, and the Typographical Union threw its support to Hawley’s bill in spite of the fact that most publishers and many authors opposed the requirement since it would add to the cost and selling price of such works.George Walton Green proved to be a remarkably energetic secretary of the American Copyright League. Born in New York City, Green was educated at Phillips Academy, Exeter, and graduated from Harvard in 1876. Admitted to the New York bar, he practiced law at an office at 11 Pine Street in the city. In a letter to Robert Underwood Johnson, the league treasurer, Green expressed his satisfaction with the process thus far:There is no doubt that there has been far greater interest in the discussion [of copyright] throughout the country in other papers than those of New York and Philadelphia alone… . The Washington hearing [was] I think, a great success. The publicity and prominence given the hearing and the number of distinguished men who took part in the discussion in behalf of the reforms which we advocated certainly had great effect in impressing on members of both houses of Congress the importance of the subject. So, when we appear again before that body I do not think we shall be put in the mortifying position we were two years ago when the Judiciary Committee of the House did not consider the subject of sufficient importance even to give us a hearing.10On 27 December 1886, the executive committee of the American Copyright League went on record favoring the Hawley bill, and at its annual meeting on 3 November 1887, the general membership confirmed this endorsement. However, later that day the executive committee reversed their endorsement and recommended the Chace bill because it was anticipated that it would contain a manufacturing clause, and the consensus seemed to be that no bill could pass Congress without the support of the typographical unions.During the course of 1887 the Boston publisher Dana Estes, of the firm of Estes & Lauriat, provided Chace with encouragement and advice. On 9 January 1887, he wrote, “I have not been idle about the matter of International Copyright since I saw you last. I regret that I was unable to find you at your office [in Washington] when I called there sometime since, before the meeting of Congress.” Estes went on to say that he and some others had founded a copyright association in Boston with about one hundred members, many of whom were prominent Bostonians. He noted with satisfaction that a majority of newspaper articles and editorials overwhelmingly favored a copyright bill but admitted that there were questions about whether it could be amended “a little more … and if it goes to the House, will it be necessary to have the public committee hearings, or can we work quietly upon the members of the committee and find out whether it will safely run the gauntlet without a public hearing?”11What is significant about this letter is Estes’s recognition that publishers and authors needed to become involved in cultivating good relations with members of Congress. He also gave vent to his strong opposition to Arthur Sedgwick’s position:I feel confident that the great body of them take the same position as is occupied by all reputable publishers; that if your bill is not their ideal they infinitely prefer its passage to the existing state of affairs. The difficulties of the case seem to be that the American Copyright League had largely for its spokesman Mr. Arthur Sedgwick, who, not to use too strong language, is an egotistic marplot. One of the prominent officers of the League told me that he thought Mr. Sedgwick had done more harm to the cause of International Copyright than all the rest of the members had done good. He [Sedgwick] was the author of the Hawley bill and it is perfectly natural, looking at it from his standpoint, that there can be nothing worth having but his bill, and to try and force it upon the attention of your honorable body [the Senate] to the exclusion of anything and everything else. He is so radical upon the subject that he would have that bill or no bill, but he does not voice the sentiment of either authors, publishers, or the people in this respect.12One might ask why the Copyright League was so hostile towards Sedgwick since he was the recipient of two Harvard degrees, a BA and a JD, had served in the Civil War and spent time in the notorious Libby Prison, and was an assistant editor at the well-known journal The Nation and a member of staff at the New York Evening Post. However, he was known primarily as a lawyer who wrote erudite legal treatises that lent themselves to politics and polemics, and therefore he may not have been considered a genuine literary figure.Estes also left little doubt of his antipathy toward the members of the Copyright League, who opposed his aggressive political tactics regarding the international copyright bills. After admitting that in recent years he had been in favor of all of them, he now announced that his mind was made up:My present position is that our only hope lies in Mr. Chace and his bill. The Typographical Union, with its relations to other trades unions, has the power and is likely to have the power for a long time to come to defeat any bill that they may desire to antagonize. How can the Copyright Bill hope to force the Hawley Bill upon Congress when its nominal author has withdrawn his support from it? …One representative of the trades unions would be listened to with more deference than all the Lowells, Stedmans, and other authors whom you can bring together. As a practical businessman, I desire to have the Copyright League pursue a course which will result in something besides mere talk. I do not see, however, as Congress is one inch farther advanced on this question than it was fifty years ago when Henry Clay and other statesmen favored it. In fact, we have no such men now to stand sponsor for the measure.13Estes concluded that the testimony given by Sedgwick, who championed Hawley’s bill, had been greatly overshadowed by the remarks of a labor union representative who supported Chace’s bill. As he wrote to Chace the following November,I have been having quite a voluminous correspondence with Mr. R. U. Johnson of the Copyright League, in which I have strongly urged him, as a representative of the League, to have a conference with you and to see if there is not some common ground on which we can all agree to favor your bill, and then to commence a vigorous campaign upon all the members of both houses of Congress to get it passed in the coming session… . I do not care to go there merely to discuss glittering generalities with a few enthusiasts who think they can make water run uphill, but if any really practical measure can be arranged, I am ready to go to work in dead earnest to work upon Congress for this most vital measure, and I think I have a suggestion of a plan which if carried out would enable us to carry this thing through successfully the coming year.14A few days later Estes wrote again to Chace, admitting that he had been late to the annual meeting on Thursday 3 November in New York and therefore was unable to openly reprimand the league for its tendency to debate rather than to act.15 However, he was fully aware that Robert Underwood Johnson, Edward Eggleston, and Arthur Sedgwick disagreed strongly with his negative depiction of their strategy, while at the same time he was buoyed by men like Hjalmar Boyesen, Edmund Clarence Stedman, and Edward C. Roe, who agreed with him.As the debate involving the merits of each copyright bill continued, several publishers who had not supported the Copyright League founded the Publishers Copyright League.16 Its first president was William H. Appleton, the New York trade publisher who introduced the practice of subscription publishing. A. C. McClurg, a wholesale publisher in Chicago, became vice president, and Charles Scribner and George Haven Putnam served respectively as treasurer and secretary. In spite of their differences regarding the Hawley bill and its lack of a manufacturing clause and the issue of importing original editions of foreign books reprinted and copyrighted in America, the two organizations wisely decided to establish a joint working committee.One major Philadelphia publisher Henry Charles Lea always managed to find some reason to object to every copyright bill, and Chace’s bill was no exception. Lea was the grandson of the prominent Philadelphia publisher Mathew Carey and inherited the business from his father Isaac Lea in 1839. Henry had received a classical education and had an abiding interest in medieval literature and history, ultimately writing ten books on the subject. The two copyright leagues felt it essential to gain Lea’s approval of the Chace bill. Accordingly, George Walton Green, secretary of the original Copyright League, wrote to Jonathan Chace on 9 December 1887: “I have just come from Philadelphia where I had a long talk with Mr. Lea. He promises to try to amend the non-importation clause of the copyright bill and I hope you will urge him to endeavor to bring the ends together now that the prospect for union is so excellent. A word from you at this moment might turn the tide.”17On 16 December 1887, Edward Eggleston wrote to Chace:Yesterday as Chairman of the Executive Committee of the League, I went to Philadelphia, resolved to make every possible concession to win from Mr. Lea such abatement of his terms as would bring about a union of men. The managing members of the Appleton firm and a representative of the Harpers went with me. Mr. Lea received us with his usual courtesy, entertaining us with hospitality and discussing the subject with acuteness, but he would not yield the turning of a hair.18Within a week, Lea wrote to Eggleston saying that he hoped their differences on importation of foreign books could be resolved, acknowledging that the obstacles were formidable:Any modification of the non-importation provision of the Chace Bill I should regard as emasculating it completely, as perverting it from its intention, and as eventually surrendering our markets. You will allow me to say that I fail to see a justification for the position of those gentlemen who insist upon the gratification of their aesthetic tastes for original editions, and to this are ready to sacrifice on the one hand the vast material interests concerning, and on the other the claim of American authorship to be relieved from its present disadvantageous position.19Chace was being pulled in various directions as to how or whether to make alterations to his bill. Robert Underwood Johnson warned him that the moment for passing a copyright bill might not come again for years: “Authors and publishers have each made radical concessions in order to carry the bill. The only person who has conceded nothing is Mr. Lea.”20 Three days later Secretary Green implored Lea to make up his mind, as “They were anxiously awaiting your decision.”21Ultimately Chace amended his bill to provide for two copies of a foreign edition to be imported by an American individual for his personal use only. Lea predicted that “it could not be made to work so as to prevent evasions that would practically nullify the objects aimed at.”22 Nevertheless, he reintroduced his amended bill in the Senate as S 554, and it was duly referred to the patents committee, but it was not until 19 March 1888 that it was favorably reported out of committee. On the same day Representative William C. Breckinridge of Kentucky offered it to the House. It was then sent on to the Judiciary Committee for its consideration. As Putnam explained to Chace on 26 March, “Colonel Breckinridge made a graceful presentation of the subject to the Committee, taking pains to speak of himself as acting on your behalf. He has evidently been favorably impressed also with the idea of helping to carry on a work begun half a century back by his predecessor [Henry] Clay.”23Previously, in 1884, a Washington agent, James Lowndes, had been retained by the American Copyright League to promote its interests in Washington, but since then neither league had done much to act directly with Congress. However, in March 1888 George Haven Putnam wrote to Chace concerning the renewed efforts being made by both leagues:This note will be handed to you by Mr. Joseph B. Marvin, who is an old friend of mine, and who has arranged to act as Washington representative of our Copyright League during the rest of the [Congressional] session, or for the portion of the session during which such service may prove important. Mr. Marvin has been a resident of Washington for nearly twenty years and has a large acquaintance with members of both parties, and he believes he can further our undertaking by placing promptly before the senators and Representatives whose cooperation has still to be secured, the information needed to give them a fair understanding of the questions at issue.24Joseph Marvin was the manager of the Bureau of General Information, an office described as “prepared to furnish promptly any information that may be wanted from the Library of Congress, the Smithsonian Institution, the Geological Survey, the Patent Office, and all the various Departments of the Government.”25 On 28 March, Marvin wrote to Robert Johnson, introducing himself as someone retained by the Publishers Copyright League. He reported that he had recently spoken with William Breckinridge, and the latter suggested withholding distribution of the Publishers Copyright League’s pamphlet What American Authors Think to members of the House until the Judiciary Committee reported its recommendations concerning the Chace bill. Then it would be appropriate to send them not only the pamphlet but also other documents together with copies of the complete committee report.26The next day Putnam wrote to Johnson, “Mr. Marvin found, however, that a considerable proportion of all of the material we have mailed has gone to waste (as is always the case with printed material sent to Congressmen).”27 It seems that Marvin was contradicting himself by advising the dispatch of printed material once the Judiciary Committee had reported out the bill while also saying that most printed matter ended up in the wastebasket of congressmen; yet the point he was making was presumably that there was nothing to be gained until representatives knew for sure that the copyright bill had cleared the Judiciary Committee with a favorable report.Whereas the Publishers Copyright League had retained Marvin as a paid agent in Washington, the Authors Copyright League enlisted only the volunteer lobbying skills of Edward Eggleston. Born in Indiana, he served as a Methodist minister until moving to Chicago to pursue journalism. In 1871 he published his famous novel The Hoosier Schoolmaster. Eggleston represented the Authors Copyright League in Washington from March 1888 to January 1891, devoting much effort and time whenever a copyright bill looked possible and slacking off when Congress was not in session or when a copyright bill was not pending. He was not well off, being an author of novels and histories for younger readers, so he welcomed payment of his services for the Copyright League. Eggleston’s first formal report to Johnson was sent from Washington on 11 March 1888. The Senate Committee on Patents was hearing testimony regarding the bill that Senator Chace had introduced on 12 December 1887:The hearing did well. My little speech of less than ten minutes has brought me many kind words but I spoke so rapidly that the stenographers could not get it. Putnam made an admirable statement, except that [Senator] Teller took offense… . Stedman’s speech was as good as we had a right to expect. I had a conversation with Teller afterward and also with Hiscock. I don’t think Teller will fight us, though I doubt if he will not vote against us. Estes made a nasty mess by denouncing the typographers’ clause [in the bill].28The typographers mistrusted almost everyone at the hearing, having faith only in Chace. They were sure the publishers would sell them down the river and try amending the bill so as to strike the manufacturing clause. Eggleston frantically tried to track down Estes and get him to recant his attack on the typographers.Eggleston did well to try to cultivate the acquaintance of Senators Teller and Hiscock. Both were veteran legislators. Henry Moore Teller (1830–1914) was a New Yorker by birth. He served in the United States Senate from 1877 to 1882, and then became Secretary of the Interior (1882–85) under President Arthur, afterwards returning to the Senate from 1885 to 1909. Frank Hiscock (1834–1914) was also a New Yorker, a lawyer, and a Republican. He served in the House of Representatives from 1877 to 1887 and afterwards in the Senate until 1893. Both men had a great deal of experience in Congress, and if they could be successfully recruited, would be valuable allies for the copyright leagues. Writing to Richard Bowker, publisher of Publishers’ Weekly, Eggleston shared his sober assessment of previous copyright league efforts:We waste money printing any long documents. I cannot find a single member in Congress outside of two or three like Chace himself who has read a word of our literature. [Brander] Matthews’ admirable pamphlet is neglected… . I have just seen a letter from Breckinridge to Johnson wherein he argues that personal letters are read but that literature is torn up. We have rather passed the stage of long publications now; it’s time for the bayonet charge of personal solicitations… . If a long document of first-rate quality is printed it ought to be in 16mo bound up. Then it wouldn’t get in the [waste] basket in every case.29Once the Senate committee on patents reported the Chace bill favorably, Eggleston thought it no longer seemed necessary to attend Congress; others would assume the burden of influencing the Senate as a whole.Nearly seven weeks passed before the Senate voted on the Chace bill, and meanwhile, advocates of international copyright were kept busy clarifying its tax implications, with Republicans committed to higher tariffs holding a majority in the Senate, while Democrats controlled the House and were anti-protectionist. Richard Bowker reiterated this in a letter to Robert Johnson on April 2:I agree with you that we should steer clear of tariff prejudice on either side, and I will try and see Mr. Harper during the day. I have not understood that Putnam had let his crusade take on a free trade aspect, for I know that he has heartily agreed with us in the general lines of policy. If you get any indications otherwise, I shall gladly talk with him about it, and I know that he will be very receptive of suggestions.30The divisive issue of the tariff affected the state of Missouri, according to a letter from Henry King, publisher of the St. Louis Globe Democrat, to Robert Johnson:I am surprised to hear that Mr. Cockrell is unfriendly to the copyright. It must be that he confounds the issue with the tariff question. That is the way the Republicans treat it, as do several other westerners. I will see that some letters are written to him from here by personal friends of his (I do not have his ear myself), and it would be well, I think, for one of the Lead Committees to have a candid talk with him.31Francis Marion Cockrell (1834–1915) represented Missouri in the Senate. During the Civil War he had been a brigadier general in the Conf
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