International Copyright Law Research Articles

Forgotten Writers, Neglected Histories: Charles Reade and the Nineteenth-Century Transformation of the British Literary Field

Forgotten Writers, Neglected Histories:Charles Reade and the Nineteenth-Century Transformation of the British Literary Field Mary Poovey During the second half of the nineteenth century, the lineaments of what Pierre Bourdieu has called the modern literary field were established in Britain, as they were in France.1 In Britain, the modern literary field was constituted by a number of developments that transformed its Victorian predecessor. These developments included the resolution of a debate about whether contributors to various kinds of periodicals should continue to publish their articles anonymously; the adoption of laws about how to define and protect literary property; and the adjudication of economic issues, like how writers should be compensated and who should determine the format and price of new works. By 1900, all of these matters had been addressed, and the literary field with which we are all familiar had begun to take shape: most periodical articles were signed; both domestic and international copyright laws had been adopted; the commission and half-pay systems of compensation had been replaced by a more equitable sharing of literary royalties; and the influence of the circulating libraries, as exemplified by the dominance of the triple-decker novel and prohibitively high book prices, was no more. One additional issue had to be resolved before the literary field assumed its modern form. This issue, made more urgent by the dramatic increase in the number and kinds of printed materials after mid century, involved the evaluation and, ultimately, the definition of "literature." After the repeal of the taxes on knowledge in the 1850s, numerous daily, weekly, and monthly periodicals rushed into print; their numbers were swelled by countless publications that were even more ephemeral and less expensive.2 In the face of this print avalanche, it began to seem imperative to decide a number of related questions: Who would be entrusted to discriminate good writing from bad? Who would establish the terms by which literary value would be assigned? And how would the groups who vied for this task [End Page 433] establish their authority in relation to the debates about signature, copyright, and the business of publishing that were already transforming the literary field? By the end of the nineteenth century, these questions about evaluation had also begun to be answered: literary reviewers, long reviled as malicious and self-serving quill-drivers, were casting aside the constraints of professional journalism and gaining cultural respect by assuming the evaluative and analytic functions performed today by academic literary critics. They were making these judgments, moreover, according to terms narrowly defined as "artistic," or what we would call aesthetic. In this essay, I explore part of the process by which this aspect of the modern literary field was stabilized. Instead of looking at literary reviewing in general, however, I focus my remarks on the antagonism that festered between one novelist and his reviewers. I do so for three reasons. First, this novelist, whose name is Charles Reade, actively participated in all of the cultural contests I have just described. Second, the enormous popularity Reade enjoyed among readers throughout the English-speaking world, as measured in book sales, specifically opposed a market definition of literary "value," adjudicated by the "public," to other definitions of value, which derived their terms from the complex imperatives of professional journalists, periodical editors, and the titans of the circulating libraries. And third, it was in the debates about what reviewers called Reade's "realism" that journalists elevated the aesthetic criteria that ultimately came to dominate literary standards and thus to ground the role of criticism within the modern literary field. Among the many effects of the gradual consolidation of this field was one that has been left out of the histories of our discipline: paradoxically, the stabilization of the modern literary field was intimately, but complexly, linked to the exile of writers like Reade from the literary canon. Let me say a few words about Reade before I describe Britain's literary field at mid century. Reade, who was born in 1814, published seventeen novels and more than two dozen plays during his lifetime. He began his writing career as a dramatist, but he galvanized his contemporaries' attention with his...

Private Ordering and the Creation of International Copyright Norms: The Role of Public Structuring

International copyright law must be based on an assessment of what types and levels of protection best further the purposes of copyright law. But constructing the international copyright regime is difficult as the international system must wrestle with copyright dilemmas that exist at the national level as well as broader challenges facing international law. This paper delineates the connection between international copyright law and the generation and distribution of knowledge by discussing two recent examples of (possible) unconventional international copyright rulemaking, namely, norms generated by Internet Service Providers in responding to infringement claims, and norms arising out of digital rights management systems.

Private Ordering and the Creation of International Copyright Norms: The Role of Public Structuring: Comment

In these times of globalization and fast-developing information technology, which allow for the cheap duplication of knowledge, the need to protect intellectual-property rights on an international level has become more pressing. In his article, Dinwoodie sketches the connection between the generation and distribution of knowledge and international copyright law (Dinwoodie [2004]). In the process he analyzes several aspects and implications of international copyright law for the generation and distribution of knowledge from the viewpoint of a legal scientist. He focusses on the role public structuring plays in the private ordering of copyright norms. (As a reminder: Dinwoodie defines public structuring as the legal underpinnings of any private activity.) For this purpose, he analyzes how private norms have been set by the commercial practices of private information intermediaries and digital rights management systems. Copyright is one of several instruments used to set incentives for the creation of knowledge and to regulate its distribution.1 Worldwide copyright legislation is based on the Berne Convention (see WIPO [1998]).2 Copyright protects literary, artistic, musical, photographic, and cinematographic works as well as computer programs, compilations of data that constitute intellectual creations, and derivatives of copyrighted works. The minimal term for copyright protection for most of these types of works is the author's lifetime plus fifty years. This can be extended if such rules exist at the national level. Rights granted to the author by copyright include reproduction and exclusion rights, as well as rights related to the performing, translating, and adapting of works. Nevertheless, copyright protects only expressions, and not ideas, procedures, or methods of operation. Dinwoodie points out several balances copyright law strives to achieve. One central goal of copyright law is to enhance the generation of knowledge. Since information (and therefore knowledge) constitutes a public good, not enough will be generated from a social perspective if knowledge generation is left to private

Literary Piracy, Nationalism, and Women Readers in Harper's New Monthly Magazine, 1850-1855

During the early nineteenth century, most books sold in the United States were foreign imports or copies. At an 1834 book trade sale, for example, of the 114 fiction books printed in America, 95 were English reprints.1 A reliance on British literature was facilitated by the lack of an international copyright law and what Laurel Brake has called "a vestigial, high cultural value attached to the ejected imperial power."2 However, America's nascent publishing industry was also shaped by what Meredith McGill calls a "Jacksonian resistance to centralized development" that kept the nation's book production system dispersed.3 This decentralization compounded and reinforced the young nation's lack of a strong literary identity and led to its reliance on imports from Great Britain for literary sustenance. British novels easily filled the bill for this decentralized system of publishers who struggled to survive by printing what was well-known and had a ready audience of consumers. American magazines were no exception: they took the culture of reprinting even further by adapting a wide variety of British publications for their own purposes. Despite a growing sense of literary nationalism, McGill contends that reprinting was the cultural norm for most of the century and was even considered to be proof of an enlightened democracy because it produced affordable reading materials for the general public and avoided monopolistic publishing practices. In fact, opponents of an international copyright agreement defined the manufacturing and dissemination of texts as America's primary cultural role, not the creation of original literature.4 Harper's New Monthly Magazine is the quintessential example of a literary endeavor that sought to adapt British literature to the establishment of a healthy and egalitarian publishing empire in the United States.5 While Harper's mimicked the survival techniques used by [End Page 63] many American publishing houses in the eighteenth and early nineteenth centuries, its preoccupation with creating a national literary identity out of "pirated" scraps of British periodicals signals a transition from national dependence on British culture to a more patriotic devotion to elevating the status of American literature during the 1850s.6 In this essay, I examine how Harper's repackaged and redeployed British literature for a nationalistic purpose, thereby participating in the nation's transformation from a culture of reprinting to a culture of authorial originality and nationality.7 Through what seems an unlikely appeal for a publication famous for its literary piracy, Harper's editors forged a patriotic message addressed primarily to women readers. While the magazine valued British novelists such as Edward Bulwer-Lytton, Charles Dickens, and William Thackeray over American writers, its focus on British authors was rhetorically constructed as nationalistic. The editors theorized that by providing the public with these examples of "excellent" high cultural texts, the magazine would raise the standards of American readers and, in turn, raise the quality of American literature. In this way, Harper's urged its women readers to nurture the next generation of native readers with the British literary models it provided so that they would eventually have the skills to both recognize and create a distinctly tasteful American literary culture. In order to understand how Harper's was able to build a patriotic message despite its reputation for piracy, it is necessary to determine how it became the most successful magazine in America between 1850 and 1855.8 Published at the beginning of the American industrial age, Harper's was produced at one of the country's first steam-powered presses located at Harper and Brothers headquarters in New York. The magazine rose to prominence due, in part, to its effective use of technology to create some of the earliest electroplate images in the nation. The magazine's editorial staff also brought status to the endeavor. From 1850 to 1856...

From Victor Pauchet to Gaston Labat: The Transformation of Regional Anesthesia from a Surgeon???s Practice to the Physician Anesthesiologist

L ouis Gaston Labat was a pioneer in the world of regional anesthesia. In the early 20th century, he brought to the United States knowledge he had acquired from his mentor, the French surgery professor Victor Pauchet. Labat was one of the founders of the “original” American Society of Regional Anesthesia (1) and the author of Regional Anesthesia: Its Technic and Clinical Application (2), which was considered the definitive textbook on regional anesthesia for at least 30 yr after its publication. The text was one of the first English-language anesthesia books devoted to the practice of regional anesthesia and one of the most popular in the United States at the time. Labat’s book was noted to have a remarkable similarity (3) to Pauchet’s book L’Anesthesie Regionale (4). Yet, no clear comparison of Pauchet and Labat’s work, including both text and illustrations, has been done. Did Labat simply copy Pauchet’s work? Was Labat’s work original and simply an outgrowth of Pauchet’s? Was there some middle ground, where copied elements of Pauchet are noticeable, yet a new and distinctive set of ideas, Labat’s alone, emerged from the pages of Regional Anesthesia?

The Pirate Publishers

The Pirate Publishers Something that Bill Bradley asks Tobias Wolff in this issue's interview calls to my mind an embarrassing moment in The Missouri Review's past. Wolff's new novel, Old School, concerns, among other things, an instance of plagiarism. Some ten years ago, a writer sent us a story plagiarized from two authors—Thorn Jones and Tobias Wolff. It was a well-cobbled-together forgery using the plot of Wolff's "The Rich Brother" and certain paragraphs directly lifted from Jones's "A White Horse." We were fooled and delighted to publish it. Needless to say, we were less than delighted when we had to apologize in a subsequent issue for having unintentionally played a part in a case of plagiarism. It's a telling note regarding both Wolff and Jones that when I notified them about what had happened, both were concerned for the magazine first. Wolff was also sorry for the writer so desperate for publication that he'd resorted to copying other writers' work. This is reminiscent of a larger embarrassment in American publishing history. Plagiarism and its near relative, piracy, play a surprisingly large role in the chronicle of book publishing in America. They are a little-discussed ghost in the attic of the industry and one of the reasons why it has such an uninspired history. From the beginning the absence of international copyright law and America's long-lingering sense of cultural inferiority encouraged American printers to simply steal the books of foreign writers. It was cheaper, easier and less risky than putting out original books; on the other hand, relying on stolen goods was not an incentive to relevancy, quality or the development of editorial skills. It also discouraged publication of American authors. Instead of risk-taking, venturesome entrepreneurs looking to the future, pirate publishers were small-time thieves doing whatever it took to make a nickel. Nineteenth-century magazines on both sides of the Atlantic also engaged in piracy and plagiarism, with some stolen articles and stories bouncing around like ping-pongballs. However, the magazine industry was more vital and technologically sophisticated than the book business, partly because serial production required magazines to be innovative. Following the Civil War, magazines began to enjoy increased circulations and unprecedented amounts of revenue from advertising. One result was that they paid writers well. The sums paid for stories by the larger-circulation magazines from 1900 through World War II sound substantial even now. Many of the great novels of the late 19th century were delivered to readers serially in successive issues of magazines such as The Atlantic Monthly and Harper's. Even as late as the 1940s, magazines continued to be more important to writers' incomes than the perennially lackluster, low-paying book market. Transatlantic literary theft burned up productive writers like Charles Dickens and Mark Twain. Both authors had so many problems with publishers that they started their own publishing operations and spent considerable effort running them. Dickens campaigned for effective international copyright law on one of his American tours, which went over badly with audiences. Americans were either indifferent to such technicalities or took the position that no one "owns" words simply because he or she has spoken, written or even published them. In 1870, ajudge used this reasoning inhis finding againstplaintiffHarriet Beecher Stowe when she sought restitution from a German-language press that had pirated and translated Uncle Tom's Cabin for immigrant German speakers. This case notoriously riled American writers. Even when the U.S. finally joined an international agreement in 1891, the period of copyright coverage was so brief that many felt it scarcely served any purpose. A few years later, Twain sarcastically dismissed the handling of copyright: "Whenever a copyright law is to be made or altered, then the idiots assemble." Yet the reliance on foreign books did begin to change after the copyright agreement of 1891, gradually turning a mostly negative influence on the industry into a mixed one. The rights on books during the first several decades of copyright were typically inexpensive, and cheap foreign books continued to support the new American publishing houses of the 20th century. Publishers still depended on them. However...

The Three-Step Test Frenzy - Why the TRIPS Panel Decision Might be Considered Per Incuriam

In 2000 first decision interpreting copyright provisions of Trade Related Aspects of Intellectual Property Agreement (TRIPS) was made by a Panel established under World Trade Organization Dispute Settlement Understanding. This significant and long-awaited decision is premised upon a fundamental error in Panel's interpretation of relationship between TRIPS Article 13 and incorporated Article 11bis of Berne Convention for Protection of Literary and Artistic Works (Berne). That error led Panel to apply three-step test contained in TRIPS Article 13 to everything that was to be decided before it. In so interpreting TRIPS, what one might have been forgiven for regarding as specifically relevant Berne provision - Article 11bis(2) - was found to be irrelevant to dispute. The paper does not analyse in detail Panel's application of three-step test. Some concluding comments are made as to desirability of the three-step test frenzy; increasing willingness in international copyright law to attempt to define limits of copyright by reference to three-step test. Instead, paper is concerned with uses - or more precisely misuses - of secondary material in TRIPS interpretation. In analysing this aspect of Panel's decision, paper contends that Panel acted in ignorance of detail of very secondary material upon which it placed so much reliance.

The Thorn of Translation in the Side of the Law

As far as issues touching on translation are concerned, international copyright law is inadequate to the realities and perspectives of a multicultural world, particularly with respect to the right to translate educational works in developing countries. This inadequacy may be traced through the history of copyright agreements, from the Berne Convention (1971) to the Nairobi Recommendations (1976) and the Trips Agreement of the World Trade Organization (1995). Calls to integrate ethical and cultural considerations into such international conventions tend to conflict with the purely economic trends that dominate the World Trade Organization, which is currently appropriating a large part of the international law system. Here it is proposed that far more than being a mere practice, translation can be the horizon and pretext for a new opening to the Other, for an ethics of rights and solidarity.

Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions

A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 Digital Millennium Copyright Act, exempted a broad range of retail and restaurant establishments from liability for the public performance of musical works by means of communication of radio and television transmissions. The WTO panel decision marks the first time an international adjudicative body has interpreted either art. 13 of TRIPs, or art. 9.2 of the Berne Convention, the text TRIPs incorporates, and generalizes from the Berne Convention reproduction right to all TRIPs and Berne rights under copyright. Berne art. 9.2/TRIPs art. 13 impose the to evaluate the legitimacy of exceptions and limitations on copyright; the panel's decision extensively analyzes each of the steps. As other multilateral instruments, such as the 1996 WIPO Copyright Treaty (art. 10) and WIPO Performers and Phonograms Treaty (art. 16.2), as well as the pending European Union Information Society Directive (art. 5.4), increasingly adopt the test, the WTO Panel decision may significantly advance the development of a truly supra national law of copyright. This article will analyze the Panel's interpretation of the test's three steps, and their application to the U.S.-law exemption. The article will also compare the Panel's treatment of the three-step test with the prior analyses proposed by several Berne Convention commentators, in order to reflect on what the Panel's analysis might mean for copyright exceptions more broadly. It is important to recognize, however, that the decision's actual impact on international copyright law will also depend on other considerations that will not be addressed here, including: Member State compliance with Panel decisions; the precedential effect of one Panel decision on later dispute resolution panels; and the willingness of national courts to look to WTO Panel decisions for guidance in evaluating local exceptions.

Prospects for a single international copyright law

The Internet is making the world a much smaller place and when it comes to digital goods – products that can be reduced to a series of zeros and ones and squirt down a wire – there are no international borders. One question often asked in relation to the Internet and copyright law is whether there should be a single international copyright law. Is this likely in the near future?

What's Fair Here Is Not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law?

What's Fair Here Is Not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law?

CONGRESS REVISITS DATABASE BILL

The Collections of Information Antipiracy Act, H.R. 2652—the almost unstoppable bill to prevent database piracy that went barreling through Congress last year only to be dropped from major copyright legislation at the last possible minute—is likely to be resurrected early in the 106th Congress. And the big question for scientists is whether the new bill will contain the protections for research data that were hammered out at the end of the 105th Congress, or whether database publishers will continue their push for more restrictive language. Databases that contain an element of creativity in their selection or arrangement are already protected by international copyright law. At issue in last year's bill was the protection of all databases, including noncopyrightable databases. Noncopyrightable databases are those that lack an element of creativity, even though they may require a substantial financial investment to produce. Databases of global temperature readings or telescope observations, genetic sequence...

International Copyright Law and Practice. General editor, Paul Edward Geller; original editors: Paul Edward Geller and Melville B. Nimmer. New York & San Francisco: Matthew Bender, 1998 release. Two volumes (looseleaf).

International Copyright Law and Practice. General editor, Paul Edward Geller; original editors: Paul Edward Geller and Melville B. Nimmer. New York & San Francisco: Matthew Bender, 1998 release. Two volumes (looseleaf).

Organizing to meet and face the Web transition

Libraries are struggling with the issues imposed on them by the Web. This has been greatly complicated by the fact that libraries are, for the most part, each acting independently in addressing the issues imposed on them daily by this new technology. This article examines the possibility that if libraries organized and effectively met the larger issues of true networks, better ease‐of‐use, coordinated digitization projects, authenticated Web resources, international copyright laws, updated teaching programs for librarians and better standards definition they would better position themselves to handle and take advantage of the opportunity created by the Web.

Multimedia law: The protection of multimedia products under international copyright law - Part II

In Part II of his article examining the treatment of multimedia products under international copyright law Stephan Beutler considers the application of the EC Database Directive.

The protection of multimedia products under international copyright law

This article, to be presented in two parts, examines the treatment of multimedia products under international copyright law with specific reference to the EC Database Directive, the Berne Convention, the GATT TRIPS Agreement, the WIPO Copyright Treaty and the WIPO Draft Treaty on Intellectual Property Rights in respect of Databases.

The Anglo-American Pulp Wars

SUMMARY The Victorian industrial revolution created both an extensive market for “escapist” literature and the technology to satisfy it. Before the passage of international copyright laws, English and American publishers, faced with a seemingly boundless demand for serialized fiction, readily pirated stories from each other as they chronically ran low on original material. To illustrate the operations of these nineteenth-century mass publishers, this paper focuses on the struggle between Edwin John Brett of London and Frank Leslie

DATABASE TREATY DIES IN GENEVA

A Patent & Trademark Office (PTO)-led delegation's attempts to make the U.S. signatory to an international treaty changing the way databases receive proprietary protection have failed. Those efforts have led to a lack of trust between U.S. negotiators and the scientific community that many say could have been avoided if PTO had been more diligent in seeking out and considering the input of a host of stakeholders in science and elsewhere before establishing a position for the U.S. The Treaty on Intellectual Property in Respect of Databases was one of three pacts debated at the World Intellectual Property Organization (WIPO) Diplomatic Conference, which ended late last week in Geneva. WIPO coordinates international laws on patents, trademarks, and copyrights, and this was the first attempt at a major revision of international copyright laws in 25 years. The three treaties discussed in Geneva deal with databases, digital media, and sound recordings. Some say the database ...

Writing Huck Finn: Mark Twain's creative process

Victor Doyno offers a new, accessible, and innovative approach to America's favorite novel. Doyno presents new material from the revised manuscript of Huckleberry Finn and also draws on Samuel Clemens's unpublished family journal, his correspondence, and his concerns about the lack of international copyright law.

THE PROTECTION OF INDUSTRIAL DESIGN

In a recent edition of the nation's favourite soap, Coronation Street, a small incident occurred which illustrated in a nutshell the problems facing the deviser of an industrial design in seeking to protect that design from being copied. Angie, a student of fashion design at the local polytechnic put on a successful show of her designs. Emboldened by the favourable reception she set out a couple of days later for an appointment with a local dress manufacturer to try and sell her designs. She returned a few hours later in tears and with hopes dashed. She had arrived at the firm only to discover that her designs were already being made up into dresses. The designs had been copied at the show and already sold to or copied by them. The incident was not without its silver lining in that in getting drunk to forget the whole sad affair this lead to a romantic interlude with fellow lodger, Curley Watts! It is the purpose of this article to examine the main strands of protection for industrial designs and to look at a proposed new European Community Design Law which has recently been published by the prestigious Max Planck Institute for Foreign and International Patent, Copyright and Competition Law (Munich, 1991). This proposal is being put to the EC Commission as the basis for an EC Regulation.