Great Britain and the signing of the berne convention in 1886

Journal of the Copyright Society of the U.S.A.

Volumn 48, Issue 3, 2001, Pages 311-340

  Bently, Lionel ^a   Sherman, Brad ^b  

^a KING'S COLLEGE LONDON   (United Kingdom)

^b GRIFFITH UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040520116     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (172)

1. In 1906, an English commentator described Berne as "the nearest approach to a Universal Law which has yet been made." See WILLIAM BRIGGS, THE LAW OF INTERNATIONAL COPYRIGHT 162 (1906).
2. JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICAL STUDY OF COPYRIGHT IN BRITAIN 158 (1994) ("By the early 1880s, the network of bilateral agreements was as complicated as it was comprehensive, and there was clearly a case for some sort of codification in a general treaty."); SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986 chs. 1-2 (1986) [hereinafter RICKETSON]. For an account emphasising the impact of the bi-lateral treaties on the formation of national copyright law in the U.K., see BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE, 1760-1911, 111-28 (1999).
3. JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICAL STUDY OF COPYRIGHT IN BRITAIN 158 (1994) ("By the early 1880s, the network of bilateral agreements was as complicated as it was comprehensive, and there was clearly a case for some sort of codification in a general treaty."); SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986 chs. 1-2 (1986) [hereinafter RICKETSON]. For an account emphasising the impact of the bi-lateral treaties on the formation of national copyright law in the U.K., see BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE, 1760-1911, 111-28 (1999).
4. JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICAL STUDY OF COPYRIGHT IN BRITAIN 158 (1994) ("By the early 1880s, the network of bilateral agreements was as complicated as it was comprehensive, and there was clearly a case for some sort of codification in a general treaty."); SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986 chs. 1-2 (1986) [hereinafter RICKETSON]. For an account emphasising the impact of the bi-lateral treaties on the formation of national copyright law in the U.K., see BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE, 1760-1911, 111-28 (1999).
5. DAVID SAUNDERS, AUTHORSHIP AND COPYRIGHT 168 (1992), states that the signing "was marked by contingencies, circumstantial arrangements and compromises."
6. Id. at 181.
7. However, Liberia did not ratify the Convention in 1887.
8. On translations, see Lionel Bently, Copyright and Translations in the English Speaking World, 12(4), TRANSLATIO: NEWSLETTER OF THE INTERNATIONAL FEDERATION OF TRANSLATORS, at 491 (1993).
9. Scott to Salisbury, Oct. 17, 1889, Disp. No. 28, in U.K. Public Record Office [hereinafter P.R.O.]: F.O. 544/1, 4 CORRESPONDENCE RESPECTING THE INTERNATIONAL COPYRIGHT CONFERENCES AT BERNE (1889-91) . See also WALTER COPINGER, THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART 580 (3d ed. 1893) ("The Berne Convention was a step in the right direction and the result is that in the countries whose government are parties to it a comparatively uniform system of international copyright now prevails.").
10. Scott to Salisbury, Oct. 17, 1889, Disp. No. 28, in U.K. Public Record Office [hereinafter P.R.O.]: F.O. 544/1, 4 CORRESPONDENCE RESPECTING THE INTERNATIONAL COPYRIGHT CONFERENCES AT BERNE (1889-91) . See also WALTER COPINGER, THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART 580 (3d ed. 1893) ("The Berne Convention was a step in the right direction and the result is that in the countries whose government are parties to it a comparatively uniform system of international copyright now prevails.").
11. SIMON NOWELL-SMITH, INTERNATIONAL COPYRIGHT AND THE PUBLISHER IN THE REIGN OF QUEEN VICTORIA 68 (1968). These are well-documented elsewhere. See, e.g., RICKETSON, supra note 2, at 41-46.
12. WILHELM NORDEMANN ET AL., INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS LAW 4 (1990) (the Berne Convention "owes its genesis to the initiative of the oldest professional association for copyright law, the Association Literaire Internationale").
13. RICKETSON, supra note 2, at 49.
14. Dec. 21, 1883, P.R.O.: B.T. 22/39/6, R 12438.
15. Letter of Mar. 5, 1884, stated that the Swiss Government had received 9 answers and 7 were positive - including Germany, France, Italy, G.B. See P.R.O.: B.T. 22/39/6, R 257.
16. Letter of Sept. 26, 1884, from F.O. Adams to Granville explaining proceedings, in Correspondence Respecting the Formation of an International Copyright Union C. 4606. (1886), 73 PARLIAMENTARY PAPERS (1886) [hereinafter Correspondence I].
17. Letter of Sept. 26, 1884, from F.O. Adams to Granville explaining proceedings, in Correspondence Respecting the Formation of an International Copyright Union C. 4606. (1886), 73 PARLIAMENTARY PAPERS (1886) [hereinafter Correspondence I].
18. Vernet to Salisbury, Nov. 17, 1885, Disp. No. 62, in Correspondence I, supra note 13, at 68.
19. The French government had proposed adoption of an "Additional Declaration" but this move was ultimately rejected. The only difference between the 1885 text and that adopted related to a formal alteration proposed by the Swiss government. See Disp. No. 4, in Correspondence Respecting the Formation of an International Copyright Union C. 4910 (1886), 73 PARLIAMENTARY PAPERS (1886) [hereinafter Correspondence III].
20. The French government had proposed adoption of an "Additional Declaration" but this move was ultimately rejected. The only difference between the 1885 text and that adopted related to a formal alteration proposed by the Swiss government. See Disp. No. 4, in Correspondence Respecting the Formation of an International Copyright Union C. 4910 (1886), 73 PARLIAMENTARY PAPERS (1886) [hereinafter Correspondence III].
21. See, e.g., the papers relating to a letter sent from Baron Tauchnitz to Disraeli on Mar. 30, 1875 on the subject of copyright contained in P.R.O.:B.T. 22/39/ C R 2378. There Lord Derby doubted whether good results would be likely to come from an International Congress. On Apr. 19, 1875 the Board wrote a letter to the Foreign Office expressing its doubts about the value of International Congress at a European level.
22. The Board of Trade did not even think it was desirable to be represented; see C. Trevor to Granville, Dec. 27, 1883, Disp. No. 4, in Correspondence I, supra note 13, at 4. On the decision to send a delegate, see letter from Granville to the Board of Trade, Jan. 22, 1884, and reply from Henry Calcraft to Sir Julian Pauncefote on Jan. 23, 1884, Disp. No. 6, in Correspondence I, supra note 13, at 5.
23. Her Majesty's Minister in Berne, Francis Ottiwell Adams, was instructed merely to report: Granville to Adams, Disp. No. 9, Feb. 2, 1884. Id. at 5.
24. Granville to Adams, Sept. 18, 1884, Disp. No. 22. Id. at 16.
25. Granville to Adams, May 9, 1885, Disp. No. 34. Id. at 34.
26. Salisbury to Adams, Aug. 13, 1885, Disp. No. 40. Id. at 44; Salisbury to Calcraft, Aug. 14, 1885, Disp. No. 43. Id. at 44; Board of Trade to Salisbury, Aug. 15, 1885, Disp. No. 44. Id. at 45.
27. E.M. Underdown reported the shift in attitude between Dec. 1884 and 1885. See E.M. Underdown, The Copyright Question, 2 L. Q. REV. 213 (1886).
28. RICKETSON, supra note 2, at 49.
29. Id. at 78-79. The only other "great powers" not involved were the United States, Russia and Austria. BRIGGS, supra note 1, at 233.
30. Farrer born in 1819, joined the Board of Trade in 1848. For a brief account, see his obituary. THE TIMES, Oct. 13, 1899, at 6. See also N. Feltes, International Copyright: Structuring "The Condition of Modernity" in British Publishing, in THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 271-80 (Martha Woodmansee & Peter Jaszi eds., 1994).
31. Colin Matthew, Public Life and Politics, in THE NINETEENTH CENTURY 126 (Colin Matthew ed., 2000).
32. 12 DICTIONARY OF NATIONAL BIOGRAPHY 872 (Sir Leslie Stephen ed., 1901).
33. In a letter dated Jan. 10, 1884 Calcraft stated that, "Sir Thomas Farrer was opposed in principle to all Copyright Conventions and Copyright legislation as tending to increase the price of books to the public." See P.R.O.: B.T. 22/ 39/6. (It is interesting to note that this correspondence was not included in the account of correspondence published in the Parliamentary Papers. Correspondence I, supra note 13.
34. Farrer, referred to in his obituary in The Times as "the last of the Cobdenites," was author of an exposition on free trade, Free Trade Versus Fair Trade (1882). See also Froude, quoted in THE TIMES, Feb. 14, 1881, at 11 (suggesting that "Mr. Farrer and his friends believe that copyright is an infraction of free trade" and Rae, suggesting that "the Board of Trade were opposed to all copyright at all, and said that when they talked about cheap books they wanted books at so cheap a rate that the author could not afford to write them").
35. Report of the Commissioners Appointed to make Inquiry With Regard to the Laws and Regulations Relating to Home, Colonial and International Copyright (1878) c. 2036, 24 PARLIAMENTARY PAPERS 163 (1878) [hereinafter Royal Commission Report]; Minutes of Evidence, With Appendix (1878) c. 2036-1, 24 PARLIAMENTARY PAPERS 253 (1878) [hereinafter Royal Commission Evidence].
36. Report of the Commissioners Appointed to make Inquiry With Regard to the Laws and Regulations Relating to Home, Colonial and International Copyright (1878) c. 2036, 24 PARLIAMENTARY PAPERS 163 (1878) [hereinafter Royal Commission Report]; Minutes of Evidence, With Appendix (1878) c. 2036-1, 24 PARLIAMENTARY PAPERS 253 (1878) [hereinafter Royal Commission Evidence].
37. Report of the Commissioners Appointed to make Inquiry With Regard to the Laws and Regulations Relating to Home, Colonial and International Copyright (1878) c. 2036, 24 PARLIAMENTARY PAPERS 163 (1878) [hereinafter Royal Commission Report]; Minutes of Evidence, With Appendix (1878) c. 2036-1, 24 PARLIAMENTARY PAPERS 253 (1878) [hereinafter Royal Commission Evidence].
38. Farrer gave evidence for eight days before the Royal Commission, but his views were subsequently lambasted in an article in the Edinburgh Review. See Review of Report of Copyright Commission (1878), 148 EDINBURGH REV. 295. Farrer gave a response in Thomas Farrer, The Principle of Copyright, 24 FORTNIGHTLY REV. 836 n. 1 (1878) ("[T]he statements and insinuations which the article contains concerning the conduct of the Board of Trade, and concerning the part I am supposed to have taken, argue ignorance of the manner in which public business is conducted as well as of the facts of the case").
39. Farrer gave evidence for eight days before the Royal Commission, but his views were subsequently lambasted in an article in the Edinburgh Review. See Review of Report of Copyright Commission (1878), 148 EDINBURGH REV. 295. Farrer gave a response in Thomas Farrer, The Principle of Copyright, 24 FORTNIGHTLY REV. 836 n. 1 (1878) ("[T]he statements and insinuations which the article contains concerning the conduct of the Board of Trade, and concerning the part I am supposed to have taken, argue ignorance of the manner in which public business is conducted as well as of the facts of the case").
40. Thomas H. Farrer to Joseph Chamberlain, Nov. 24, 1884, in P.R.O.: B.T. 22/39/ 6.
41. Writing in the Fortnightly Review, supra note 31, Farrer explained that it was "desirable that copyright laws, whatever they may be, should be as nearly as possible the same in all English speaking countries, and should be extended throughout those countries to all authors, without distinction of nationality."
42. The main exception related to some forms of artistic copyright (paintings, drawings and photographs) because the 1862 Fine Art Copyright Act did not apply outside U.K. Graves v. Corries, [1903] A.C. 496. The Dramatic Copyright Act, (1833) 3 & 4 Will. IV c. 15 did apply. Smiles v. Belford, (1877) 1 O.A.R. 436, 1 Cart. 576, 2 Can. Com. Rep. 216.
43. 5 & 6 Vict. c. 45. For background to the Act, see CATHERINE SEVILLE, LITERARY COPYRIGHT REFORM IN EARLY VICTORIAN ENGLAND: THE FRAMING OF THE 1842 COPYRIGHT ACT (1999).
44. This was required as a preliminary to bringing an action: Literary Copyright Act, s. 24.
45. However, in some countries an important restriction on the value of the copyright monopoly was the ability to import "foreign reprints" on payment of a set remuneration. This is discussed further below.
46. Prussia (1846, 1855); Saxony (1846); Brunswick (1847); Thuringian Union (1847); Hanover (1847); Olderburg (1847); Anhalt (1853); Hamburg (1853); Hesse (1861); Germany (1886).
47. (1851). For a contemporaneous account, see PETER BURKE, THE LAW OF INTERNATIONAL COPYRIGHT BETWEEN ENGLAND AND FRANCE (1852). All the bilateral treaties were reproduced in WALTER COPLINGER, THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART, Appendix K, 771-814 (2d. ed. 1881).
48. (1851). For a contemporaneous account, see PETER BURKE, THE LAW OF INTERNATIONAL COPYRIGHT BETWEEN ENGLAND AND FRANCE (1852). All the bilateral treaties were reproduced in WALTER COPLINGER, THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART, Appendix K, 771-814 (2d. ed. 1881).
49. (1880). See (1881) 99 PARLIAMENTARY PAPERS 449.
50. (1854).
51. Sardinia (1860); Italy (1885). See Correspondence Respecting Denunciation of Copyright Convention Between Great Britain and Italy (1884-85) C. 4422, 87 PARLIAMENTARY PAPERS 503.
52. P.R.O.: B.T. 22/39/6.
53. Colonial Copyright, House of Commons Paper No. 339 (1872), 43 PARLIAMENTARY PAPERS 277 (1872) (containing correspondence between Colonial Office, Board of Trade and Canada dating back to 1845) [hereinafter Colonial Copyright I]; Colonial Copyright, C. 1067 (1874), 44 PARLIAMENTARY PAPERS 539 (1874) [hereinafter Colonial Copyright II); Colonial Copyright, House of Commons Paper No. 144, 51 PARLIAMENTARY PAPERS 635 (1875) [hereinafter Colonial Copyright III].
54. Colonial Copyright, House of Commons Paper No. 339 (1872), 43 PARLIAMENTARY PAPERS 277 (1872) (containing correspondence between Colonial Office, Board of Trade and Canada dating back to 1845) [hereinafter Colonial Copyright I]; Colonial Copyright, C. 1067 (1874), 44 PARLIAMENTARY PAPERS 539 (1874) [hereinafter Colonial Copyright II); Colonial Copyright, House of Commons Paper No. 144, 51 PARLIAMENTARY PAPERS 635 (1875) [hereinafter Colonial Copyright III].
55. Colonial Copyright, House of Commons Paper No. 339 (1872), 43 PARLIAMENTARY PAPERS 277 (1872) (containing correspondence between Colonial Office, Board of Trade and Canada dating back to 1845) [hereinafter Colonial Copyright I]; Colonial Copyright, C. 1067 (1874), 44 PARLIAMENTARY PAPERS 539 (1874) [hereinafter Colonial Copyright II); Colonial Copyright, House of Commons Paper No. 144, 51 PARLIAMENTARY PAPERS 635 (1875) [hereinafter Colonial Copyright III].
56. Royal Commission Report, supra note 30, at xxx (para.183).
57. The Canadian Act of 1875 gave full protection where copyright work was published in Canada with the consent of the Imperial copyright owner.
58. Canada, New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island.
59. Literary Copyright Act, 1842, s. 17. Note also An Act to regulate the Trade of the British Possessions abroad, (1845) 8 & 9 Vict. c. 93, s. 9 (enforcement of prohibition on importation by customs).
60. For a comparison of prices, see Royal Commission Evidence, supra note 30, at 373 (Appendix XI G) (e.g., the British print of Trollope's The Prime Minister was selling at $6.30, compared with the U.S. reprint at 75 cents). In 1886 Bergne observed that at the present moment the purchase of new books is to the general English public an unattainable luxury. John Henry Bergne, The International Copyright Union, 3 L. Q. REV. 14, 15 (1886).
61. See evidence of Sir Charles Trevelyan to the Royal Commission. Royal Commission Evidence, supra note 30, at 1-5 (Qs. 1, 12, 28-32). The only Act passed by the President of the Council of India and the Governor General in Council during this period seems to have been Act No. 20 of 1847, entitled An Act for the Encouragement of Learning in the Territories subject to the Government of the East India Company, by defining and providing for the enforcement of the right of copyright therein (1847), reproduced in 41 PARLIAMENTARY PAPERS 77 (1851). This Act did not contain provisions prohibiting importation akin to section 17 of the Literary Copyright Act 1842. See COPINGER, supra note 7, at 812.
62. Disp. No. 1, in Colonial Copyright I, supra note 44, at 1-6.
63. Cf. the previous policy of orientalisation, whereby the colonists adopted a policy of governing using existing indigenous legal structures, and which required the colonisers to acquaint themselves with local languages, customs, and practices. See BERNARD COHN, COLONIZATION AND ITS FORMS OF KNOWLEDGE: THE BRITISH IN INDIA (1996).
64. The lack of clubs, book societies and circulating libraries in the colonies meant the high prices had a real impact. Royal Commission Report, supra note 30, at xxx (para. 185). For an exhaustive account of the early period, see JAMES JOHN BARNES, AUTHORS, PUBLISHERS AND POLITICIANS: THE QUEST FOR AN ANGLO-AMERICAN COPYRIGHT AGREEMENT, 1815-54 ch. 7 (1974).
65. An Act to amend the Law relating to the Protection in the Colonies of Works entitled to Copyright in the U.K, (1847) 10 & 11 Vict. c. 95, s.1.
66. (1850) 13 & 14 Vict. c. 6, approved by the Order in Council of Dec. 12, 1850. By the time the Canadian Act was accepted, measures had already been passed - requiring payment of a duty of 20% - in relation to Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland.
67. For the list of colonies, Acts and Orders in Council, see Copyright (Colonies), House of Commons paper, Aug. 25, 1857 No. 303 (sess. 2) (1857), 28 PARLIAMENTARY PAPERS 113. The colonies were New Brunswick, Nova Scotia, Prince Edward Island, Barbados, Bermuda, Bahamas, Newfoundland, St. Christopher, Antigua, St. Lucia, Canada, British Guiana, St. Vincent, Mauritius, Grenada, Jamaica, Cape of Good Hope, Nevis, and Natal. Copinger said these covered "all the important colonies with the exception of Australia." See COPINGER, supra note 39, at 499. Exports of books to Australia were considerable, however, amounting to £332,136 in 1876. See Royal Commission Evidence, supra note 30, at 371 (Appendix XI E).
68. Royal Commission Report, supra note at 30, at xxxi (para. 193). According to J. Rose, one in ten reprints paid duty: Disp. No. 20, in Colonial Copyright I, supra note 44, at 17.
69. Royal Commission Report, supra note 30, at xxxi (para. 195).
70. Id. at xxxi (para. 196).
71. Louis Mallet to Colonial Office, July 22, 1868, in Colonial Copyright I, supra note 44, at 21-22.
72. Colonial Office to Board of Trade, Oct. 20, 1870, Disp. No. 57, in Colonial Copyright I, supra note 44, at 54 (noting views of Barbados, Bermuda and Jamaica that if the Foreign Reprints Act were repealed it would result in "little short of the exclusion of modern English literature from these islands"). Royal Commission Report, supra note 30, at xxxiii (para. 211).
73. See Royal Commission Report, supra note 30, at xxxiii (para. 207).
74. In particular over whether if such a compulsory licence were to be available, copies could be imported from the colonies back into the U.K. Review of Report of Copyright Commission, supra note 31, at 309-22.
75. (1868) L.R. 3 H.L. 100.
76. Royal Commission Report, supra note 30, at xxx (para 182).
77. Id. at xxxv (para. 227); Royal Commission Evidence, supra note 30, at 53 (Q. 1096) (Daldy, of the Copyright Association, admitting injustice).
78. Colonial Office to Board of Trade, Oct. 20, 1870, Disp. No. 57, in Colonial Copyright I, supra note 44, at 52 (collecting responses to draft Bill and demonstrating the general indifference of colonies such as Ceylon, Barbados, St. Vincent, Bermuda and Natal on the ground that books were rarely published in the colonies). See also Lees to Governor in Chief, Lagos, Sept. 23, 1873, Disp. No. 26, in Colonial Copyright II, supra note 44, at 27-28 (referring to the colony as a primitive settlement and stating that copyright was only an issue in "more complex and elaborate societies").
79. COPINGER, supra note 39, at 505 ("This opinion has caused great and general dissatisfaction in the colonies and India; it has either destroyed all copyright property in the numerous works since 1842, which have been first published there, or rendered such property comparatively worthless"); John Finnamore, Imperial Copyright Law As Affecting the Colonies, VICTORIAN REV. 712 (1881).
80. See BRIGGS, supra note 1.
81. As with the Indian Act of 1847, supra note 50. In New Zealand, the Copyright Ordinance of Mar. 15, 1842 gave twenty-eight years protection or life without any registration requirement at all. In Cape of Good Hope, the Act to Protect and Regulate the Rights of Authors in respect of their Works (No. 2 of 1873) gave protection for life plus five years or thirty years.
82. See, e.g., Victoria, Copyright Act 1869; New South Wales, Copyright Act 1879, 42 Vict. No. 20; New Zealand, Fine Art Copyright Act 1877, 41 Vict. No. 17; South Australia, Copyright Act 1878, 41 & 42 Vict. No. 95.
83. See, e.g., Victoria, An Act to Secure in Certain Cases the Right of Property in Telegraphic Messages 1872, 36 Vict. No. 7; South Australia, Telegram Copyright Act 1872, 36 Vict. No. 10; Western Australia, Telegraphic Property Act 1871; New Zealand, Electric Lines Act 1884; Cape of Good Hope, Telegraphic Copyright Act 1880, No. 8 (July 26, 1880).
84. See J. Thompson to Lord Knutsford, Memorandum amplifying their reasons, July 14, 1890, in P.R.O.: FO 544/1 supra note 7, and Correspondence on Law of Copyright in Canada (1895) C. 7783, 70 PARLIAMENTARY PAPERS 59 (containing 122 pages of correspondence in response to the Canadian Act of May 1889).
85. P.R.O.: B.T. 22/38 C 1373.
86. See President of Swiss Confederation to Earl Granville, Programme Proposed by the Swiss Federal Council for the International Conference at Berne, 22 Aug. 1884, in Correspondence I, supra note 13, at 11.
87. In a letter from Dufferin to the Foreign Office, July 16, 1886, Dufferin explained that "the Government of India, may, we think, be trusted to conform to the general principle of English legislation in this matter, while there are peculiarities in connection with the copyright in Indian books which may require special treatment. Thus India differs from other British possessions in having an extensive and growing vernacular literature. That literature is at present in the stage of abridgments and translation, and special care will be needed with a view, on the one hand to protect authors from the unauthorized abridging and translating of original works and on the other hand, to avoid all unnecessary checks on the production of such abridgments and translations as, it may be hoped, are destined to be the precursors of original literature." See Disp. No. 195, in P.R.O.: F.O. 544/1, 1 CORRESPONDENCE RESPECTING THE INTERNATIONAL COPYRIGHT CONFERENCES AT BERNE (1883-86) [hereinafter UNPUBLISHED F.O. CORRESPONDENCE] .
88. Board of Trade to Foreign Office, Apr. 19, 1875, in P.R.O.:B.T. 22/39/6.
89. COPINGER, supra note 39, at 494 (American readers "infinitely more numerous" than the English). In 1887, Gladstone said that the question of copyright with America was "a big subject, growing bigger and bigger a vue d'oeil, and likely, after two or three generations to be bigger than it now is by five or six fold." Gladstone to Alexander MacMillan, cited in NOWELL-SMITH, supra note 8, at 64.
90. Royal Commission Report, supra note 30, at xxxvi (para. 233).
91. P.R.O.: B.T. 22/38 C 1373.
92. Royal Commission Report, supra note 30, at xxxvii (para. 239).
93. See BARNES, supra note 53. Apparently between 1843 and 1886 there were eleven bills presented to the U.S. Congress on this matter, see NOWELL-SMITH, supra note 8, at 69. Much of the correspondence can be found in P.R.O.: B.T. 22/38.
94. SIDNEY MOSS, CHARLES DICKENS'S QUARREL WITH AMERICA (1984) (explaining that Dickens's comments on copyright prompted twenty-five years of bad blood between Dickens and the American press).
95. ANTHONY TROLLOPE, AN AUTOBIOGRAPHY 308-14 (1950). See also FEATHER, supra note 2, at 167.
96. See BARNES, supra note 53, chs. 11 & 12.
97. Royal Commission Report, supra note 30, at xxxviii (para. 246); C. Appleton, Royal Commission Evidence, supra note 30, at 177-82 (Qs. 3522-608) (explaining the different positions taken in the United States); RICHARD ROGERS BOWKER, COPYRIGHT - ITS LAW AND ITS LITERATURE 25 (1886) (United States refusal to enter agreement not honourable).
98. S. Conant, International Copyright - An American View, 40 MACMILLAN'S MAGAZINE 151, 153 (1879) (few American authors and publishers deny the justice of protecting British authors, but the publishers, especially in the South and West, fear that it is a device through which British publishers will try to capture the U.S. market).
99. Id. (the negotiating process has assumed a phase from which practical results might reasonably be expected); cf. An Englishman's View on the Foregoing, 40 MACMILLAN'S MAGAZINE 161, 163 (1879) (author stating he was not aware of the "new urgency" for an Anglo-American agreement).
100. Correspondence Relative to Suggested Copyright Convention Between Great Britain and the United States (1881) C. 2870, 98 PARLIAMENTARY PAPERS 1 (1881); Correspondence Relating to U.S. Copyright Act (1890-91), C. 6425, 83 PARLIAMENTARY PAPERS 671. For proposals, government responses, and collections of related materials, see also P.R.O.: B.T. 22/37, especially R 3212, R 8079, R 8092, R 10908, R 3248.
101. Correspondence Relative to Suggested Copyright Convention Between Great Britain and the United States (1881) C. 2870, 98 PARLIAMENTARY PAPERS 1 (1881); Correspondence Relating to U.S. Copyright Act (1890-91), C. 6425, 83 PARLIAMENTARY PAPERS 671. For proposals, government responses, and collections of related materials, see also P.R.O.: B.T. 22/37, especially R 3212, R 8079, R 8092, R 10908, R 3248.
102. Royal Commission Report, supra note 30, at xxxviii (para. 250).
103. th Cong.), referred to in P.R.O.: B.T. 22/37. See also BOWKER, supra note 86, at 30-32.
104. Farrer to Chamberlain, Nov. 24, 1884, in P.R.O.: B.T. 22/39/6.
105. By 1891, Bergne tells us that the law was "comprised in eighteen more or less complicated and unintelligible statutes." John Henry Bergne, Anglo-American Copyright, 172 Q. REV. 380, 393 (1891).
106. Royal Commission Report, supra note 30, at vii (para. 7).
107. BRIGGS, supra note 1, at v (1906).
108. The Royal Commission heard evidence from forty-nine witnesses, and the published evidence amounts to 409 pages. See Royal Commission Evidence, supra note 30.
109. Sir Louis Mallet was the only member of the Commission whose dissent was total. Royal Commission Report, supra note 30, at xlvi-lvii.
110. FEATHER, supra note 2, at 194.
111. In 1864 Adam Black had introduced a Bill attempting to consolidate copyright law as a whole. See Bill to Consolidate and Amend Acts relating to Copyright in Works of Literature and Fine Arts (1864) (Bill No. 59), 1 PARLIAMENTARY PAPERS 501. In 1878 and 1879, Bills were introduced to give effect to the Copyright Commission's recommendations by Jenkins and Lord John Manners. See Bill to Consolidate and Amend the Law relating to Copyright (1878-79) (Bill No. 265), 2 PARLIAMENTARY PAPERS 3. The 1881 Bill, A Bill to Amend and Consolidate the Law relating to Copyright, No. 121, is contained in 1 PARLIAMENTARY PAPERS 639 (1881).
112. In 1864 Adam Black had introduced a Bill attempting to consolidate copyright law as a whole. See Bill to Consolidate and Amend Acts relating to Copyright in Works of Literature and Fine Arts (1864) (Bill No. 59), 1 PARLIAMENTARY PAPERS 501. In 1878 and 1879, Bills were introduced to give effect to the Copyright Commission's recommendations by Jenkins and Lord John Manners. See Bill to Consolidate and Amend the Law relating to Copyright (1878-79) (Bill No. 265), 2 PARLIAMENTARY PAPERS 3. The 1881 Bill, A Bill to Amend and Consolidate the Law relating to Copyright, No. 121, is contained in 1 PARLIAMENTARY PAPERS 639 (1881).
113. In 1864 Adam Black had introduced a Bill attempting to consolidate copyright law as a whole. See Bill to Consolidate and Amend Acts relating to Copyright in Works of Literature and Fine Arts (1864) (Bill No. 59), 1 PARLIAMENTARY PAPERS 501. In 1878 and 1879, Bills were introduced to give effect to the Copyright Commission's recommendations by Jenkins and Lord John Manners. See Bill to Consolidate and Amend the Law relating to Copyright (1878-79) (Bill No. 265), 2 PARLIAMENTARY PAPERS 3. The 1881 Bill, A Bill to Amend and Consolidate the Law relating to Copyright, No. 121, is contained in 1 PARLIAMENTARY PAPERS 639 (1881).
114. When Lord John Manners wrote to Treasury asking for assistance in drawing up a Bill to give effect to the recommendations of the Royal Commission, Farrer advised on Nov. 23, 1878 that the Treasury should comply with Lord John Manner's request "it being understood that the Bill is in his charge." P.R.O.: B.T. 13/9/15 E 4158.
115. P.R.O.: B.T. 22/39/6.
116. Farrer to Chamberlain, Nov. 24, 1884, in P.R.O.: B.T. 22/39/6. The reference to a "wasps nest" seems to allude to the attack on Farrer in the Edinburgh Review, where the author had threatened that "if the Board of Trade attempts to force a bill through Parliament in the spirit of Mr. Farrer's recommendations, it will find itself surrounded by a swarm of infuriated hornets." See Review of Report of Copyright Commission, supra note 31, at 339.
117. nd Earl Granville was Secretary of State from 1880-1885.
118. th Duke of Richmond to the Board of Trade, but in Aug. 1885 replaced him with Edward Stanhope.
119. P.R.O.: B.T. 22/39/6.
120. There is some suggestion that Lord Salisbury was well known to be interested in the copyright issue. Daldy to Salisbury, Disp. No. 1, in Correspondence Respecting the Formation of an International Copyright Union 1 C. 4856 (1886), 73 PARLIAMENTARY PAPERS [hereinafter Correspondence II].
121. ANDREW ROBERTS, SALISBURY - VICTORIAN TITAN 339 (1999). Granville was criticised as being courteous but ineffective. See Foreign and Colonial Failures, 137 BLACKWOOD'S MAGAZINE 298, 299 (1885).
122. ANDREW ROBERTS, SALISBURY - VICTORIAN TITAN 339 (1999). Granville was criticised as being courteous but ineffective. See Foreign and Colonial Failures, 137 BLACKWOOD'S MAGAZINE 298, 299 (1885).
123. One author described Salisbury as "one of the dominant European, indeed world statesmen of the last quarter of the nineteenth century, hardly inferior in stature to Bismarck." PAUL SMITH, LORD SALISBURY ON POLITICS: A SELECTION FROM HIS ARTICLES IN THE "QUARTERLY REVIEW" 1860-1883, 1 (1972).
124. PETER MARSH, BARGAINING ON EUROPE: BRITAIN AND THE FIRST COMMON MARKET, 1860-1892, ch. 7, The Quandary over Commercial Policy, 1883-1888 (1999).
125. THE TIMES, Aug. 6, 1885, cited in MARSH, supra note 109, at 161. See also DAVID STEELE, LORD SALISBURY: A POLITICAL BIOGRAPHY 192-93 (1999); ROBERT TAYLOR, LORD SALISBURY 99-100 (1975).
126. Although both Departments had an interest in commercial treaties, their interests often differed. In 1872, the Board of Trade's functions in negotiating commercial treaties were transferred to the foreign office. See P.R.O.: B.T. 13/11/1. On the tension between the two departments, see A. Cecil, Ch VIII The Foreign Office, in 3 THE CAMBRIDGE HISTORY OF BRITISH FOREIGN POLICY, 1866-1919 (Adolphus Ward & George Gooch eds., 1923). The tension was directly reflected in a dispute over whether to introduce copyright legislation in early 1885, as proposed by the Foreign Office but objected to by the Board of Trade. Ultimately, the matter was resolved in the Board of Trade's favour by the Lord Chancellor. See Disp. No. 57, in UNPUBLISHED F.O. CORRESPONDENCE, supra note 76.
127. Although both Departments had an interest in commercial treaties, their interests often differed. In 1872, the Board of Trade's functions in negotiating commercial treaties were transferred to the foreign office. See P.R.O.: B.T. 13/11/1. On the tension between the two departments, see A. Cecil, Ch VIII The Foreign Office, in 3 THE CAMBRIDGE HISTORY OF BRITISH FOREIGN POLICY, 1866-1919 (Adolphus Ward & George Gooch eds., 1923). The tension was directly reflected in a dispute over whether to introduce copyright legislation in early 1885, as proposed by the Foreign Office but objected to by the Board of Trade. Ultimately, the matter was resolved in the Board of Trade's favour by the Lord Chancellor. See Disp. No. 57, in UNPUBLISHED F.O. CORRESPONDENCE, supra note 76.
128. Adams was born in 1826 in Quebec, Canada. He graduated with Honours in Mathematics and Classics from Trinity College, Cambridge in 1848 before going to the Bar in 1852. He was in the diplomatic service from as early as 1854, serving variously in Stockholm, St. Petersburg, Paris, Washington, Japan and Berlin. Adams retired in 1888 but remained in Switzerland and, having fallen ill while mountaineering, died at Grindelwald in Switzerland in July 1889. See Frederic Boase, 4 MODERN ENGLISH BIOGRAPHY (A-C Supp. to vol. 1) (first published 1908; republished 1965); 4 ADMISSIONS TO TRINITY COLLEGE, CAMBRIDGE (1801-1850) 544 (1911).
129. Adams was born in 1826 in Quebec, Canada. He graduated with Honours in Mathematics and Classics from Trinity College, Cambridge in 1848 before going to the Bar in 1852. He was in the diplomatic service from as early as 1854, serving variously in Stockholm, St. Petersburg, Paris, Washington, Japan and Berlin. Adams retired in 1888 but remained in Switzerland and, having fallen ill while mountaineering, died at Grindelwald in Switzerland in July 1889. See Frederic Boase, 4 MODERN ENGLISH BIOGRAPHY (A-C Supp. to vol. 1) (first published 1908; republished 1965); 4 ADMISSIONS TO TRINITY COLLEGE, CAMBRIDGE (1801-1850) 544 (1911).
130. Adams was author of two works. See FRANCIS O. ADAMS, THE HISTORY OF JAPAN (1874); FRANCIS O. ADAMS & C.D. CUNNINGHAM, THE SWISS CONFEDERATION (1889).
131. Adams was author of two works. See FRANCIS O. ADAMS, THE HISTORY OF JAPAN (1874); FRANCIS O. ADAMS & C.D. CUNNINGHAM, THE SWISS CONFEDERATION (1889).
132. Sept. 10, 1883, P.R.O.:B.T. 22/39/6, R 10634.
133. Adams to Granville, Sept. 26, 1884, Disp. No. 26, in Correspondence I, supra note 13, at 29. Adams to Granville, Oct. 3, 1884, Disp. No. 27. Id. at 30 (referring to a German proposal to codify copyright at an international level as "clearly a step in the right direction"). Adams gave a speech pleading for international copyright to the first banquet of the newly founded Society of Authors on Oct. 18, 1884. See VICTOR BONHAM-CARTER, 1 AUTHORS BY PROFESSION 125 (1978). Adams became Vice President of the Society.
134. Disp. No. 48, in UNPUBLISHED F.O. CORRESPONDENCE, supra note 76.
135. For his appointment, see Salisbury to Bergne, Aug. 18, 1885, Disp. No. 47, in Correspondence I, supra note 13, at 46.
136. nd SUPPLEMENT 148-49 (Sir Sidney Lee ed., 1912); THE TIMES, Nov. 16, 1908, at 13.
137. nd SUPPLEMENT 148-49 (Sir Sidney Lee ed., 1912); THE TIMES, Nov. 16, 1908, at 13.
138. See Sir Edward Grey to G.R. Askwith, K.C., in CORRESPONDENCE RESPECTING THE REVISED CONVENTION OF BERNE 21 (1908) Cd 4467.
139. Bergne, supra note 49, at 14. See also Bergne, supra note 93, at 382-83 (celebrating consensus that literary and artistic works are property and as such entitled to protection from theft and misappropriation).
140. Bergne, supra note 93, at 383 ("Thus has commenced the codification of international law in the matter of copyright; but further years of experience in the practical working of the Convention are needful before the time arrives to select the best portions of the domestic law of each State, in order to form a copyright code which shall be operative in all the states of the Union").
141. Farrer had observed that "the law is very confused, illogical, and unscientific: but on the whole answers its purpose. There is absolutely nothing to be got for the public by amending it; and not much for authors and artists. It would be well to have it rearranged and logically settled - but every point bristles with difficulty." Farrer to Chamberlain, Nov. 24, 1884, in P.R.O.: B.T. 22/39/ 6.
142. The Copyright Association was formed in 1872 with the object of watching over the general interests of copyright owners. See Longman and Murray to Kimberley, Mar. 26, 1872, Disp. No. 70, in Colonial Copyright I, supra note 44, at 66. Its founder members included William Smith, Robert Browning, John Murray, T. Longman, A. Macmillan and F. Daldy. Daldy was initially appointed Honourable Secretary. Its influence seems to have been significant: Daldy was a Member of the Royal Commission of 1875-78.
143. Adams had predicted after the Conference in 1884 that a copyright union had "every likelihood of being founded at no distant period." Letter of Sept. 26, 1884. from Adams to Granville. Disp. No. 26, in Correspondence I, supra note 13, at 29.
144. The possibility of denouncements had been mentioned in a letter from Pauncefote to Calcraft, Oct. 22,1884, Disp. No. 29, observing that "the position of British authors and copyright owners would in such a case become exceedingly serious." Id. at 31.
145. Memorandum delivered from Daldy to Bourke at an interview on July 31, 1885. See Disp. No. 39. Id. at 37.
146. P.R.O.:B.T. 22/39/6.
147. Calcraft to Pauncefote, Dec. 2, 1884, Disp. No. 32, in Correspondence I, supra note 13, at 33-34.
148. Bergne, supra note 49, at 14.
149. P.R.O.: B.T. 22/39/6.
150. Salisbury to Adams, Aug. 18, 1885, Disp. No. 46, in Correspondence I, supra note 13, at 45.
151. Adams to Salisbury, Sept. 9, 1885, Disp. No. 52. Id. at 48.
152. th Congress. See THORVALD SOLBERG, THE DEVELOPMENT OF INTERNATIONAL COPYRIGHT RELATIONS BETWEEN THE UNITED STATES AND FOREIGN COUNTRIES 16 (1934) (quoting Cleveland as remarking that, "The interesting and important subject of international copyright has been before you for several years. Action is certainly desirable to effect the object in view . . . ").
153. Adams to Granville, Feb. 12,1885 reporting conversation with M. Droz. where the latter had argued that "If, as was evident, Great Britain's object was to come to terms on copyright matters with the U.S., she could adopt no surer method than herself to join the Union. . . .There would be what may be called an international morality about it . . . ." Disp. No. 53, in UNPUBLISHED F.O. CORRESPONDENCE, supra note 76.
154. Adams & Bergne, Sept. 28, 1885, Disp. No. 58, in Correspondence I, supra note 13 at 55.
155. Berne Convention (1886), Arts. 12, 5 and 3. The seizure provision was qualified by a requirement that "the seizure shall take place conformably to the domestic law of each state"; the translation right was limited to 10 years; and the provision for protection of non-Convention nationals was limited to publishers rather than authors.
156. Berne Convention (1886), Art. 19.
157. James Bryce, M.P., was then the Parliamentary Under Secretary of State for Foreign Affairs, and Regius Professor of Civil Law at Oxford.
158. THE TIMES, Mar. 22, 1886, at 7.
159. James Bryce, Under-Secretary of State for Foreign Affairs, in 304 HANSARD 1143 (Apr. 8, 1885) (explaining that Her Majesty's government would not enter the Convention on behalf of the colonies without their consent and emphasizing the spirit with which the legislation was being introduced as "to consolidate good feeling between this country and the colonies"); Lord Herschell L.C., in 307 HANSARD 21 (3d. ser., June 21, 1886) (reporting that all the colonies had replied, except New South Wales, consenting to the proposed legislation).
160. James Bryce, Under-Secretary of State for Foreign Affairs, in 304 HANSARD
161. International Copyright Act 1886 (49 & 50 Vict. c. 33) s. 8(1). See also Bergne, supra note 93.
162. S. 8(4) (nothing to prevent passing of law by British possession respecting copyright within the limits of such possession in respect of works first produced in that possession.).
163. Calcraft to Pauncefote, Dec. 2,1884, Disp. No. 32, in Correspondence I, supra note 13, at 33.
164. Farrer to Chamberlain, Nov. 24, 1884, in P.R.O.:B.T. 22/39/6.
165. Calcraft to Pauncefote, Dec. 18, 1885, Disp. No. 65, in Correspondence I, supra note 13, at 71.
166. Though this was not how The Times saw it. THE TIMES, Sept. 19, 1885, at 5 (the draft "differs but slightly from that adopted last year.").
167. Sept. 28, 1885, Disp. No. 58, in Correspondence I, supra note 13, at 50.
168. Id.
169. Daldy wrote to Lord Salisbury congratulating Adams and Bergne on their efforts, declaring they had "most efficiently carried out their instructions and with great skill and tact improved by their influence the draft Articles, so that they can now be regarded by all interested as most satisfactory." Daldy to Salisbury, Dec. 26, 1885, Disp. No.1, in Correspondence II, supra note 106, at 1.
170. A more remarkable change of heart was the Board of Trade's sudden decision that codification should be pursued as soon as possible: in a letter to Pauncefote, dated Dec. 18, 1885, Disp. No. 65, in Correspondence I, supra note 13, at 71, Henry Calcraft said that "[t]he Board of Trade further consider that this is of such importance that foreign countries should be able clearly to understand what the law of copyright is in this country; that they think it will be most desirable if the circumstances of the session admit of it, to take the opportunity of codifying the present Copyright law in the bill which they hope to introduce to Parliament at an early date." Perhaps this change reflected a change in mood of the Board of Trade associated with the impending resignation in 1886 of Thomas Farrer and his replacement with Henry Calcraft. Calcraft certainly seems to have been embarrassed by Farrer's refusal to consider copyright reform: in a letter of Jan. 10, 1884, Calcraft stated that "it is not easy" to provide reasons for the Board of Trade's desire that no delegate should be sent to the Berne conference of 1884. See P.R.O.: B.T. 22/39/6.
171. Pauncefote to Daldy, Jan. 9, 1886, Disp. No. 3, in Correspondence II, supra note 106, at 3, and Pauncefote to Herbert, Mar. 4, 1886, Disp. No. 4, in id.
172. In particular, assumptions that the "civil" and "common law" traditions had developed distinct identities that needed to be reconciled in international law seem to be ill founded. Certainly, no perception of this distinction is present in the work of the U.K. government. Writing in 1906, an English commentator observed, "A rapid survey of the present position of copyright protection in the civilised countries of the world yields to the conclusion that in essence the rights conceded to authors are everywhere identical . . . But when we come to the details of protection, we find that the laws of various states differ considerably from one another." See BRIGGS, supra note 1, at 154. For some recognition of a dualism, see Bergne, supra note 49, at 20 (describing differences in terms of greater liberality and organisation of laws); but cf. Bergne, supra note 93, at 382 (expressing bewilderment at "inexhaustible variety" of domestic laws).