Without Copyrights - Robert Spoo

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the complete review - law / publishing

Without Copyrights

by
Robert Spoo

general information | review summaries | our review | links | about the author

Title:	Without Copyrights
Author:	Robert Spoo
Genre:	Non-fiction
Written:	2013
Length:	276 pages
Availability:	Without Copyrights - US
	Without Copyrights - UK
	Without Copyrights - Canada
	Without Copyrights - India

Piracy, Publishing, and the Public Domain
Published in Oxford University Press' Modernist Literature and Culture-series, and with a Foreword from the series editors

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Our Assessment:

B : interesting, detailed look at copyright and modernism

See our review for fuller assessment.

Review Summaries
Source	Rating	Date	Reviewer
The Nation	.	21/10/2013	Caleb Crain
TLS	.	14/3/2014	Eric Bulson

From the Reviews:

"Whatever my reservations about Spoo’s assessment of Joyce’s motives, his account of the case of Joyce v. Roth is careful and definitive. (...) Changing mores had outpaced the obscenity and copyright laws on the books, and it was understandable that Joyce appealed to his community for a protection he couldn’t find elsewhere. But the danger of such an appeal is that it may establish no more than a congeries of interests. There is no substitute for reforming the laws." - Caleb Crain, The Nation

"The many pitfalls and paradoxes of copyright are the subject of Robert Spoo’s Without Copyrights, a wonderfully detailed study of how transatlantic modernism was shaped by laws surrounding the production and distribution of texts. What emerges is a revolutionary account of the ways that copyright and obscenity laws determined if, when and where modernist works could travel." - Eric Bulson, Times Literary Supplement

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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The complete review's Review:

In Without Copyrights Robert Spoo surveys the changing nature of copyright protection in the United States for works originally published abroad through the early part of the twentieth century and the consequences, with a focus on the effects this had on literary modernism, as authors such as Ezra Pound, James Joyce, Virginia Woolf, and D.H.Lawrence (among others, including J.R.R.Tolkien ...) found some of their work not legally protected in the US. From how publishers handled the potential free-for-all that out-of-copyright works allowed for to Ezra Pound's proposed copyright reforms to James Joyce's dealings with publisher Samuel Roth (who liked to help himself to out-of-copyright work, even as he tried to cultivate relationships with authors such as Joyce), it is an often fascinating study of American publishing and copyright law.
Originally -- and through most of the nineteenth century -- copyright protection in the United States simply did not extend to works by non-citizens and non-residents; it was solely a national right. As Spoo notes:

Quite simply, Americans were permitted, even encouraged, to import, reprint, publish, or sell foreign works without the permission of their authors or publishers.

Hence, the works of authors such as Walter Scott or Charles Dickens were free for the taking and re-publishing in the United States, with no obligation on the part of the publishers to compensate the authors for their work. Since the works could not be copyright protected, however, any publisher could publish them, with no publisher having the exclusive right to the latest Dickens, etc. -- leading, at times, to many competing editions (much as one now finds many competing editions of classic (i.e. out of copyright) works). Spoo describes how publishers dealt with this -- from the race to be first to publish (and how small advantages could be secured to ensure that) to the norms-based system of self-regulation that emerged:

Trade courtesy was a voluntary, extralegal system in which many larger the larger trade publishing houses behaved as if rights in foreign works existed and could be enforced against a publisher who reprinted without authorization.

       It was reasonably successful, but obviously far from foolproof, with especially new entrants into publishing having little incentive to play along (at least until they themselves were sufficiently established).
       The Chace Act of 1891 finally extended copyright to foreign authors -- while protectionistically making it inordinately difficult for authors to qualify. The 'manufacturing clause' required publication -- typeset or from plates made in the United States -- and the deposit of two copies with the Copyright Office before or on the date of publication anywhere else. This was an enormous obstacle to all but the most successful authors; the change in the law in 1909 allowed a bit longer time-frame -- deposit within sixty days of a foreign edition and a request for interim copyright, which then gave publishers an additional four months to publish in the US itself -- but also strengthened the manufacturing requirement, with English-language books now having to be not only typeset but also printed and bound in the United States. Not surprisingly, many books fell foul of the requirement: Joyce's Dubliners and (a slightly more complicated case) Ulysses, D.H.Lawrence's Sons and Lovers, even J.R.R.Tolkien's The Lord of the Rings or a work as recent as Terry Southern's Candy (at least in its 1958 original version, first published in France): all could freely be republished in the US, by anyone.
       Contrasting them with the then existing laws, Spoo expounds on Ezra Pound's copyright proposals -- giving (unconstitutional) copyright protection of unlimited duration to authors and their heirs, but also allowing for licensing should authors or heirs neglect to keep a work in print. While not entirely workable (and, at least in its eternal duration, outright unconstitutional), it gives some interesting insight into an author's (fairly realistic) view of what copyright protection should afford to both creator and consumer.
       Spoo devotes several chapters to the case-study of James Joyce's Ulysses. While magazine-publication of the work in progress might have given some copyright protection, Paris publication of a much-revised text and the complete failure to try to abide by the requirements of American copyright law (no copy was deposited, no interim copyright requested) ultimately meant that Ulysses was up for grabs in the US. An additional problem and hurdle Joyce faced in maintaining control over the text as he wanted it were obscenity-charges against it: it was, at the time, unpublishable as such in the US. Enterprising Samuel Roth published several chapters in a magazine of his, and even though he offered some payment this was ultimately not an arrangement Joyce approved of. Eventually Joyce sued -- not for copyright infringement (he didn't have a case) but the commercial misappropriation of his name -- i.e. suggesting Roth was (ab)using Joyce's good name without permission in flogging his magazine -- a stretch, too (courts previously had upheld the right of the use of an author's name to go along with material that copyright law did not protect, as was the case here), but one that made for an interesting legal battle (in part because Roth was such a ... colorful character). Ultimately, Roth -- who had a lot of other issues to deal with -- settled, though hardly to either party's full satisfaction. (Spoo also relates the amusing squirming Joyce did to get out of paying his legal bills -- including playing around some more with the Ulysses-copyright (assigning it to publisher Sylvia Beach, only then to claim it back when he saw new opportunities to cash in on it).)
       An interesting coda comes from Random House then laying claim to Ulysses, both in shepherding it through the courts so that it could be published in unexpurgated form (as allowed by the famous 1933 decision by Judge Woolsey), and then in managing to get other publishers to respect their claim in a stunning case of trade courtesy that held until 1960s (and even then was only challenged by a limited-edition edition) and seems never to have been challenged by any other popular publisher (who likely would have prevailed against any copyright claims in printing their own edition). (Among the amusing side-notes to this 'authorized edition' is that Random House gave the typesetters the forged Roth version of Ulysses, and so instead of the version Joyce wanted disseminated: "For years, the authorized edition bore traces of Roth's error-filled contrefaçon, and the claimed copyright in the Random House edition was further complicated by this hapless commingling of authorized and piratical matter.")
       As Spoo notes, the story doesn't end here: revisions in the copyright act not only extended copyright-duration but, in 1996, returned many previously unprotected works -- including Ulysses -- to protected status (in the case of Ulysses for a mere two additional years, however). But complications remain: Joyce's 1939 Finnegans Wake reëntered the public domain in the European Union in 2011 -- but its copyright runs through 2034 in the US. The current: "cacophony of laws, an inconsistent, semiprivate world commons" is far from ideal -- and complicated further by factors such as the many 'orphan' works for which copyright holders can not be found -- rendering them essentially unpublishable (as no one will risk publication, only then to be confronted by the copyright holder popping up after all and laying his claim ...).
       Among the interesting aspects of Spoo's survey is how American copyright long made it very difficult for foreigners to retain any rights to their work when it was re/published in the US, and the slow evolution to a different regime -- a process repeated in recent decades elsewhere, most notably China. (Meanwhile, in other countries that are not parties to international copyright agreements (Iran, Viet Nam), multiple translations and editions of foreign works are still frequently found -- with the occasional 'trade courtesy' appearing as well.) Interesting, too, is how publishers dealt among themselves with the fact that so much was essentially free for the taking and re-publishing, leading to price-wars and efforts to maintain dominance by other means (such as having claim to the 'authorized edition', even when that differs not a whit from any other).
       Without Copyrights is a quite fascinating exploration of a bit of (often exasperating) legal, literary, and publishing history. A fairly narrow case-study -- with a bit on Ezra Pound's copyright-philosophy somewhat awkwardly tied in (though Pound was also a significant figure in the Joyce-Roth disputes) -- it makes for interesting and quite good reading. From its perfect opening anecdote -- James Joyce responding to a Society of Authors complaint about an unauthorized performance of a Shaw play -- to its focus on the fascinating story of Ulysses it's full of entertaining titbits, and includes a variety of complex characters (with neither Joyce nor Roth, for example, coming off as entirely sympathetic).
       There are interesting points about the nature of copyright law and the business of publishing here that also have contemporary relevance. A debate on copyright law -- what it should do, who it should serve, how it should vest -- seems more vital than ever, and Without Copyrights helpfully shines a light on aspects and consequences that are often overlooked.
       Without Copyrights would seem essential reading for anyone dealing with copyright, but it is certainly also of interest to those with only a more casual interest in the law, the times, the authors, and these works.

- M.A.Orthofer, 22 September 2013

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Links:

Without Copyrights:

Oxford University Press publicity page
Q & A at Publishers Weekly
Book Discussion on Without Copyrights on C-SPAN [video]

Reviews:

Robert Spoo:

Faculty page

Other books of interest under review:

See Index of Law-related books
See Index of Books on Books and Publishing, and Bibliographies

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About the Author:

Robert Spoo teaches at the University of Tulsa.

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