The Encyclopedia of the Novel - Peter Melville Logan 2014

Copyright/Libel

Shafquat Towheed

The concept of copyright, like the prose novel in codex form, was unknown in the era of manuscripts; both were directly shaped by the introduction of movable type (see TYPOGRAPHY). The concept of libel, on the other hand, long predates printing, with Sumerian, Greek, and Roman law all recognizing it as a punishable offence. The author-privilege system (first granted in a range of European city-states, starting with Venice, from 1469) and the French book-privilege system (1498—1526) are examples of legal protection at the behest of the state or of printers to maintain a commercial monopoly and political censorship, predating the institution of formal copyright, and emerging within the first decades of printing (Rose, 10; Armstrong, 2—3). Initially, copyright was mediated through a printers' guild operating with the approval of the state; in England this monopoly was held with the Stationers' Company from 1557, when Queen Mary issued a Royal Charter aimed specifically at suppressing heretical and seditious material (copyright evolved in the light of both censorship and libel). The Stationers' Company continued to hold this monopoly (as a trade protection) until the outbreak of the Civil War in 1640. This was replaced by the Licensing Act (1662—95), which required the registration of all works before publication in order to receive legal protection; the Act was specifically aimed at suppressing libel, i.e., the printing of “seditious, treasonable and unlicensed books and pamphlets,” and to facilitate the state's political, moral, and economic control over print (http://www.copyrighthistory.org: record, U.K._1622). In 1695, the Licensing Act expired after repeated attempts to renew it failed, and the legal protection of books (and with it, official state censorship) was effectively at an end. From 1695 until the passage of the 1710 Statute of Anne—the world's first copyright act—printing in England was effectively unregulated (see PUBLISHING).

Daniel Defoe, frequently considered to be the father of the English novel, and the first professional author to earn over £1,000 in a year from his writing, made the transition from pamphleteer to novelist in this period of upheaval; his 1704 “Essay on the Press” made an eloquent case for the right of authors to own (and protect) their works from unauthorized reproduction (http://www.copyrighthistory.org: record, U.K._1704). In fact, in the six years between Defoe's tract and the passage of the Statute of Anne, not a single case to stop press-piracy (Defoe's term for what would later be called copyright violation) was brought before the common law courts (Deazley, 2006, 161—62). The initiation of a formal system of copyright protection, whether couched in terms of an author privilege, a trade practice to protect printers' monopolies, a means of spreading learning, suppressing seditious libel, or as a form of censorship, often had little immediate benefit for authors; despite the 1710 Act, Defoe died as he had lived, in debt and evading his creditors.

In England as in almost every country, the rise of copyright law was bound up with the need to suppress dissent, either in the form of seditious libel (directed against the state), or criminal libel (constituting a breach of the peace); this link between the laws for libel and copyright remained until well into the twentieth century. Before the Statute of Anne, the protection of literary content was predicated by monopolies in printing and the political needs of the state, not the recognition of authors' rights; the Statute specifically championed the spread of education as its goal—it was titled “An Act for the Encouragement of Learning”—and consideration of authors' rights was secondary. “An Act for the Encouragement of Learning,” effective from 10 April 1710, offered authors a protection of fourteen years from first publication, followed by another fourteen years if they were still alive, but did not explicitly provide posthumous rights for an estate, or determine whether copyright existed as a common-law right in perpetuity. This anomalous situation continued until the landmark ruling of Donaldson v. Beckett (1774), which ruled that perpetual copyright (as a “common-law” right) did not exist (Deazley, 2004, 191—212). This had dramatic implications for book production, especially for cheap editions of popular novels; Defoe's Robinson Crusoe (1719—22) sold more copies in the five years after 1774 than in the previous fifty-five (St. Clair, 8). Publishers exploited a lengthy and illustrious backlist of non-copyright material to produce cheap editions of fiction. Novel reading as a popular pursuit in the Romantic period (1790—1830) was a direct consequence of the removal of perpetual copyright. Successive copyright laws in Britain (1814, 1838, 1842, 1886, and 1911) extended periods of copyright protection and expanded its reach. The rise of the novelist as a professional (and profitable) occupation is inseparable from the development of copyright law (see AUTHORSHIP).

Copyright Regimes, Monopolies, Infringements

The underlying premise behind each state's support of authorial copyright was their position on monopolies vs. free trade, the requirements of censorship, and the need to diffuse cheap print to spread learning. In Tsarist Russia, copyright law (“The Regulation of 1857 relating to the Censorship of the Press”) maintained its original close relationship to the law against seditious libel and was used as a form of political repression, rather than to prevent the translation and dissemination of cheap foreign fiction (or cheap reprints) seen as aiding education (Towheed, 174); in the U.S., it was protectionist, designed to promote the rights of American manufacturers at the expense of authors, whether American or foreign (Homestead, 80—83). British copyright law in the nineteenth century was reformed through relentless petitioning, often by novelists such as Charles Dickens, leading up to the 1842 Act (Seville, 1999, 184—85), while in France, which since 1791 had maintained a far higher recognition of authorial rights (droit d'auteur) than any other country, offered through the 1852 Act unilateral protection to writers of all foreign works, regardless of whether those countries reciprocated (Seville, 2006, 56—57). The idealistic and principled French position eventually led to the first international copyright agreement, the Berne Convention (1886, effective 5 Dec. 1887), which for the first time offered authors copyright protection in all signatory countries (the U.S. finally joined in 1986).

The systematic exploitation of the insufficiencies in different national copyright jurisdictions by printers and publishers worked in several distinct ways. First, offshore publishers played a disproportionately influential (and highly profitable) role in supplying key markets with cheap, unauthorized editions, creating and meeting a need for such works. Examples include Holland and pre-1800 Ireland in relation to Britain, and Switzerland and Belgium in relation to pre- and post-revolutionary France, respectively. Secondly, publishers drew upon the vast body of work published in other countries with whom they did not have reciprocal copyright agreements to supply the burgeoning need for cheap books in their own domestic markets, without having to pay royalties to authors (the first, and often most expensive step in the value chain). This practice was best epitomized by the industrial scale of unauthorized printing of British writing, particularly novels, in the U.S. prior to the passage of the first Anglo-American Copyright Act on 1 July 1891. Plates of the most popular novels, such as Mrs. Humphry Ward's Robert Elsmere (1888), were sold, leased, or reused until they fell apart; the cheapest reprints, some selling for as little as a cent, were often almost unreadable. Finally, publishers in nearly every country exploited the relative lack of copyright protection of works translated from (or into) other languages. British law did not comprehensively protect translations from other languages into English until the 1911 Copyright Act, when translations were given the same protection as other publications (life plus fifty years); in contrast, India's 1914 Copyright Act offered translations a mere ten years' protection for work first published in India, after which if no authorized translation had taken place, anyone was allowed to translate the original text from English into any Indian language without restriction (Bently, 1181—82). The Indian Act was clearly aimed to encourage vernacular education through the rapid translation of British books (including novels) into Indian languages.

The lack of comprehensive bilateral or multilateral copyright agreements between competing nation-states had a profound effect on the publication, distribution, and consumption of fiction in the long nineteenth century, and unsurprisingly, novelists were amongst the foremost campaigners for the harmonization of their rights. Honoré de Balzac, in his 1834 open letter to authors (http://www.copyrighthistory.org, record:f_1834) appealing to the Romantic concept of the originality of artistic genius, complained bitterly of the inadequacy of existing copyright protection, Dickens actively agitated for an Anglo-American copyright law, Mark Twain bemoaned his lack of rights (and loss of earnings) in Britain, while Harriet Beecher Stowe tried (and failed) to stop the unauthorized publication of Uncle Tom's Cabin (1852) in German translation. One of the reasons why Stowe's novel became an instant bestseller in Europe was because the text was not protected by copyright law; dozens of unauthorized editions appeared, with over 1.5 million copies printed in Britain in the first weeks alone, none of which earned the author any royalties.

Libel and the Novel

While libel followed writing and preceded print and the novel by many centuries, as with copyright law, it was only in the eighteenth century that libel laws institutionalized the fictive nature of the novel genre. Legislative changes such as Fox's Libel Act (1792), with its insistence on jury trials for libel prosecutions (and thereby a public consideration of the “fictional” quality of the novel), and the revival of the formulation of “blasphemous libel” (Marsh, 227—28), were designed to suppress radical and seditious printing and enforce differentiation between narratives that were “too factual,” and therefore “ran the risk of being legally actionable,” and those that “clearly asserted their fictionality” and were therefore “unharmed” (Davis, 95). In Britain in the Romantic period, libel prosecutions were politically motivated and effectively a form of post-publication censorship (Franta, 144—52). Libel became a subject for novels, such as Anthony Trollope's Cousin Henry (1879), or integral to actual libel cases, such as James Fenimore Cooper's thinly fictionalized accusation of libel directed at the upstate New York press in Home as Found (1838). By the end of the nineteenth century, the rise of the roman à clef and the increasing intellectual, sexual, and political audacity of especially French novelists meant that attempts to prescribe publications increasingly invoked “obscene libel,” the category under which Henry Vizetelly was prosecuted in 1889 for his translation and publication of Émile Zola's La Terre (The Earth).

The development of the Modernist novel (see MODERNISM) is inseparable from authorial negotiations of libel law; for Ernest Hemingway, James Joyce, D. H. Lawrence, Wyndham Lewis, and George Orwell, to name a few, the very real prospect of libelous prosecution shaped the final publication of their novels. The “scandal of libel” in Joyce's Ulysses (1922) “constitutes an explicit part of the plot itself,” and Joyce's accurate yet elided realist representation of people, business, and events means that the novel is both “blatantly libelous” and “seeks to elude that charge” (Latham 2009, 104). The copyright status and final published texts of both Hemingway's A Farewell to Arms (1929) and Lawrence's Women in Love (1920) were intrinsically shaped by the prospect of prosecution for libel (Glass, 217). Famously confrontational, between 1931 and 1938, Lewis was involved in “at least six direct or threatened actions for libel, almost all of which were lost when nervous editors agreed to settlements” (Latham 2009, 105). Orwell was forced by his publisher to make revisions to Down and Out in Paris and London (1933) to evade prosecution; his Such, Such Were the Joys was not published in the U.K. until 1968, for the same reasons. Novelists as diverse as John Grisham, Salman Rushdie, and Patricia Cornwell have either been the subject of libel cases for their fiction, or have themselves resorted to libel prosecutions to defend their literary standing (a clear example of a legal formulation of the value of the “author figure”).

As these examples show, libel “does not simply regulate the production of literature” but rather “provides the framework through which a particular piece of writing is presumed to be pure invention and thus without financial, legal, and moral consequences for living individuals” (Latham 2009, 78), a reiterative process of particular aesthetic significance for the novel. As part of “the law of literature” (Barendt, 481), libel constitutes a shaping intervention as important as (though less clearly demarcated than) copyright law.

Copyright, the Novel and its Readers

Far from being an incidental in the communications circuit, copyright law, like the impact of changing libel laws, has often had a profound impact on what we read, and how we read it. The rise of the literary canon (with the novel as its core) at the end of the nineteenth and beginning of the twentieth centuries was coterminous with the expansion of the domain of both national and international copyright law (and by implication, a specific termination of those authorial rights). Oxford University Press launched the World's Classics Series (originally started by Grant Richards) in 1906, and J. M. Dent the Everyman's Library in 1904, largely as a result of the movement of the work of many of the great early and mid-nineteenth-century writers (published before 1862) into the public domain; under the terms of the 1842 Copyright Act, protection lasted for forty-two years after the date of publication, or the life of the author plus seven years (whichever was longer). Readers in an age of mass literacy enjoying the widespread availability of cheap editions were presented with a list of “classic” texts, chosen not just for their literary merit, but also because they were in the public domain; the framing of these texts with freshly commissioned academic introductions was another direct result of not having to pay authorial royalties on the content.

The expansion of bilateral and multilateral copyright protection brought pecuniary rewards for publishers and access benefits for readers. In 1886 Macmillan launched the Colonial Library series, a fiction-heavy list aimed specifically at the Indian and Australian markets, in anticipation of Britain's signing and ratification that year (for itself, and on behalf of the colonies) of the Berne Convention. Readers in colonial markets like Australia would now be able to read the latest novel by Thomas Hardy in an authorized edition and sold as a numbered volume in an approved fiction list, rather than having to rely on the vagaries of ad hoc book imports from England (the publisher effectively added to the value chain). On the other hand, the lack of copyright protection could also have remarkable implications for the reading and reception of novels. The lack of any reciprocal agreement between the two largest English-language markets (Britain and the U.S.) until 1891 meant that British novels were public domain in the U.S. (and vice versa); unauthorized cheap editions of new fiction flooded the marketplace, earning their authors little or nothing. Incensed by the situation, Rudyard Kipling deliberately wrote two completely different endings to his 1890 novel, The Light that Failed, and allowed the first (happy)-ending text to circulate (and be pirated) widely in the U.S., while holding back the longer (tragic)-ending text in lieu of the passage of the 1891 Act. Readers experienced radically different novels depending on which side of the Atlantic they inhabited.

The Global Marketplace

The tendency in the twentieth century was toward the harmonization of copyright jurisdictions (this has gathered pace since 2000, under the direction of the World Intellectual Property Organisation, WIPO). The U.S. (1989), China (1992), and Russia (1995) signed the Berne Convention and joined the World Copyright Treaty (administered by WIPO) in 2002, 2007, and 2009, respectively. This process has had unexpected implications for the novel and its readers. Famously, the European Union's retrospective standardization of copyright protection through Directive 93/98/EEC which came into effect on 1 July 1995 (in the case of the U.K., extended from fifty to seventy years after the death of the author) returned an entire cohort of writers whose work was already in the public domain back under copyright protection (including Conan Doyle, Joyce, Lawrence, H. G. Wells, Virginia Woolf, and William Butler Yeats), to the delight of their literary estates, but at the cost of new cheap scholarly editions (the World's Classics series was badly hit); this process was mitigated by temporary licensing (McCleery, para. 12). A similar retroactively applied extension from fifty to seventy years followed in the U.S. (the Copyright Term Extension Act, 1998). Academic editing, especially in its digital form, can both challenge the copyright protection of unpublished material (e.g., Joyce's notebooks) and extend it, as in the case of the Cambridge University Press editions of Mark Twain's novels (McCleery, paras. 6, 10).

While copyright and libel law have intrinsically shaped the production and consumption of the novel, and its development is essentially inextricable from the rise of this world-conquering literary form, we need to be alert to the fact that much of the world's literary output (including the novel) has flourished in the spaces before, between, and beyond the domain of copyright and libel law. One of the world's largest markets for the novel, China, only established a Literary Copyright Association for its authors (to administer collective copyright) in Oct. 2008. From samizdat in the Soviet era, to “book-a-like” in the Philippines, and from block printing in Buddhist monasteries to the phenomenal rise of Google Books, a significant proportion of the world's literary consumption takes place regardless of copyright law and unaffected by charges of libel. The rise of digital media and the increasingly convergent consumption of content across different media present new challenges. In the twenty-first century, the novel remains one of the preeminent (and most profitable) sources of original intellectual content, and the acquisition of intellectual property, which represents the first step in any publisher's value chain, is as vital as ever (Phillips, 48). Indeed, as our patterns of novel-reading and modes of access change, the central question of copyright, an “immaterial ownership” which “may never touch us directly,” nonetheless “permeates our everyday existence” (Hemmungs Wirtén, 147). The raging debate between on the one hand, the advocates of the extension of the copyright protection of intellectual property and the rights of authors, and on the other, those supporting the expansion of a “creative commons,” an open-access public-domain free-for-all, is set to intensify in the twenty-first century. Once again, the novel, as the most globalized form of literary consumption, will be at its core.

SEE ALSO: Adaptation/Appropriation, Editing, Paper and Print Technology, Translation Theory.

Bibliography

1. Armstrong, C. (1999), Before Copyright.

2. Barendt, E. (1999), “Defamation and Fiction,” in Law and Literature, vol. 2, ed. M. Freeman.

3. Bently, L. (2007), “ Copyright, Translations, and Relations between Britain and India in the Nineteenth and Early Twentieth Centuries,” Chicago-Kent Law Review 82(3): 1181—1240.

4. Davis, L.J. (1983), Factual Fictions.

5. Deazley, R. (2004), On the Origin of the Right to Copy.

6. Deazley, R. (2006), Rethinking Copyright.

7. Feather, J. (2006), History of British Publishing.

8. Franta, A. (2007), Romanticism and the Rise of the Mass Public.

9. Glass, L. (2007), “ #$%^&∗!?,” Modernism/Modernity 14(2): 209—23.

10. Hemmungs Wirtén, E. (2004), No Trespassing.

11. Homestead, M. (2005), American Women Authors and Literary Property, 1822—1869.

12. Latham, S. (2006), “The ’nameless shamelessness’ of Ulysses,” in Scandalous Fictions, ed. J. Morrison and S. Watkins.

13. Latham, S. (2009), Art of Scandal.

14. McCleery, A. (2008), “Dead hands keep a closed book,” Times Higher Education Supplement, 5 June, http://www.timeshighereducation.co.uk/.

15. Marsh, J. (1998), Word Crimes.

16. Parrinder, P., and W. Chernaik (1997), Textual Monopolies.

17. Phillips, A. (2006), “Where is the value in publishing?,” in Future of the Book in the Digital Age, ed. B. Cope and A. Phillips.

18. Rose, M. (1993), Authors and Owners.

19. Seville, C. (1999), Literary Copyright Reform in Early Victorian England.

20. Seville, C. (2006), Internationalisation of Copyright Law.

21. St Clair, W. (2005), “The Political Economy of Reading,” http://www.trin.cam.ac.uk/index.php?pageid=474.

22. Towheed, S. (2007), “ Geneva v. St. Petersburg,” Book History 10: 169—91.