University of Virginia Library

VI. Some General Considerations

Although copyright records are national documents, the operation of a national copyright law can at times produce records of interest to students of another country. Even when the records themselves do not contain information about the publication of foreign works, the international copyright situation is always a principal factor in publishing history. Whenever two countries employ the same language, authors in one country sometimes deliberately publish their works first in the other, in an effort to forestall unauthorized (or "pirated") editions. In regard to English-speaking countries, this situation existed between England and Ireland in the eighteenth century (since the English copyright law did not extend to Ireland until 1801) and between England and the United States in the nineteenth (since the American law did not include English works until 1891). Many famous English books of the nineteenth century were first published in America because, even though the works could not be copyrighted in the United States, the authors could at least gain something from the

American market by selling advance sheets to an American publisher; many famous American books were first published in England because American authors could secure English copyrights during most of this period only if they published their works first in England or were residents of England.[57] A great deal of bibliographical and literary research has been directed toward this aspect of copyright history — from I. R. Brussel's Anglo-American First Editions (1935-36) to individual studies of the trans-Atlantic publication of Scott, Marryat, Cooper, Irving, Dickens, Tennyson, Longfellow, and Mark Twain,[58] among others. But copyright records are not involved, except when a country allows foreign works to be registered or deposited. American titles do appear in the nineteenth-century British records; but foreign titles are listed in the American records (under authority of the 1891 act) beginning at different times for different countries: copyright privileges were extended to some countries (e.g., France and England in 1891, Germany and Italy in 1892) by individual Presidential proclamations, to others (China, Hungary, Thailand) by bilateral treaties, and to still others through the Mexico City Convention (after 1908), the Buenos Aires Convention (after 1914), and the Universal Copyright Convention (after 1955).[59]

Despite the differences between the English and American copyright laws and records, the two countries have held the same basic traditions of copyright. The English concept of perpetual common-law copyright in unpublished work and limited statutory copyright in published work (implying that copyright is not a natural right of authorship), established in Donaldson v. Becket (1774), formed the tradition inherited by the United States and supported judicially in Wheaton v. Peters (1834). The philosophy of copyright which exists in any country naturally affects the kinds of records that accumulate, but not their thoroughness, for compulsory registration and deposit are not necessarily tied to statutory provisions for limited-term copyright. Further-more, official copyright information not found elsewhere may be embodied in court decisions; thus the judicial process by which a national attitude toward copyright is evolved serves at the same time to record specific facts about the individual books which occasioned the decisions. Changes in the law or its interpretation may not always result in changes, from a practical point of view, in the bibilographer's approach to the records; but since the records are a creation of the law, shifts in policy will usually alter the theoretical significance of particular inclusions or omissions.

The most striking conceptual change, since the Statute of Anne, was effected in the 1911 British act by removing unpublished works from the realm of common law; a similar provision has been proposed in the copyright revision bill in the United States (H.R. 2512, S. 597, 90th Congress, 1st session).[60] If this bill is passed as presently written,

all works, unpublished as well as published, come within the scope of statutory protection, and the term of copyright is the same for both — the life of the author plus fifty years. Bringing unpublished works under the statute and basing the term of protection on the author's lifetime will result in the recording of useful biographical information for literary historians. Both registration and deposit, however, are specifically stated not to be conditions of copyright protection. Registration is permissive rather than compulsory and may be performed at any time during the term of copyright (though it is a prerequisite for a suit for infringement); deposit of two copies within three months of publication is requested for the Library of Congress (enforceable upon the Register's demand). Under these regulations, most copyright holders will see the value of prompt registration and deposit, and the bibliographer will find no great change in the information he can derive from the records. At the same time, the view that copyright protection is not dependent upon any administrative technicalities of registration — with the consequent permissive nature of the registration procedure — means that the records which the bibliographer searches fall short, by legal definition, of constituting a list of all copyrighted works.

Bibliographers and literary historians do not often have the opportunity to document their research with sworn testimony, and evidence from copyright records therefore comes to the scholar with a kind of guarantee he rarely encounters. Information in the American Catalogue of Copyright Entries, for example, can be presented as prima facie evidence in a court of law; thus when a currently unlocated book is recorded as having been deposited on a particular day, the bibliographer, even though he may wish he personally could see the book, has the strongest assurance that it did actually exist at that time. No materials except official documents can carry such authority, and for this reason copyright records are a uniquely important source for the bibliographer. The English and American records, as described here, vary from period to period in their completeness, but it is evident that copyright registration has been carried out more punctiliously and in greater detail in the United States than in England and that the American records, especially after 1870, constitute an unparalleled storehouse of bibliographical facts. The Copyright Office of the Library of Congress should be familiar territory to every bibliographer; as a center for bibliographical research into American books (and many foreign ones after 1891), there is no other place equal to it.[61]

The convenience of using the English and American copyright records has been greatly increased by the publication of substantial portions of them. Even when published indexes do not carry the official sanction which the Catalogue of Copyright Entries does, they serve a useful purpose. It is to be hoped, therefore, that the remaining sections of these records can be published, either as official governmental projects or as separate volumes prepared by individual scholars. For English copyright, the Bibliographical Society has undertaken to publish part of the remaining records, beginning with David Foxon's edition of the Register for 1710-46; for the rest of the period before 1842 and after 1907, at least the kind of index which has been published to cover the years from 1842 through 1907 should be made generally available. As for the American records, the two unpublished segments present different problems. The record books from 1870 to 1891, which are complete and orderly, offer little difficulty; the essential facts in each entry could be transcribed and indexed (perhaps in a form similar to Dramatic Compositions), and the resulting volumes could be issued seriatim. But for the district court records, from 1790 to 1870, all the surviving documents (including the title pages) should be thoroughly indexed on cards before any volumes are published, since the nature and physical arrangement of these materials are such that information relevant to one period and state can turn up at a number of places. The published entries could then be arranged chronologically by states, with one master-index, or else the master-index itself could be constructed to contain the information from the entries: the most important requirement is that all titles registered in any given period, regardless of the state in which the registration took place, eventually be brought together in one alphabet. Such projects, though expensive and time-consuming, are justifiable and desirable. The publication of these entries would facilitate and stimulate bibliographical and historical research into the Anglo-American cultural heritage; it would also insure the preservation of the most detailed official record ever produced of a nation's literary and artistic product.