Without Copyrights: Piracy, Publishing, and the Public Domain by Robert Spoo (review)

Mention the word “copyright” to Joyce scholars, and you might inspire thoughts of legal protection for the critical and scholarly works they produce. More likely, the word will connote rights-holders’ power to set up seemingly impenetrable roadblocks to the use of works under their control. In this second case, the passage of Joyce’s works into the public domain, as their copyright expired in most European Union countries on 1 January 2012, might provoke an unequivocal answer to a New Yorker blogger’s question: “Has James Joyce Been Set Free?”¹ Copyright can seem like a house either securing the work from dangers lurking outside or holding it captive inside.

A fascinating legal-historical study of the American public domain in the nineteenth and early-twentieth century, Without Copyrights offers a very different view. Defining the public domain as “the common pool of works that are not protected by copyright in a given country,” Robert Spoo admits to an affection and nostalgia for its former “wild, open, lawless quality” (30, 275). His words might evoke Billy the Kid, Wyatt Earp, and other bandits and lawmen of the West, but an epithet that pervades his study, “pirate,” points more to Blackbeard and the open seas between the United States and Europe. Whether or not Spoo’s study inspires nostalgia in his readers, it will certainly make them rethink copyright, the public domain, and the impact of both on Ulysses’s publication and reception.

A literature scholar turned lawyer and legal scholar, Spoo is fluent in these two worlds. Without Copyrights wears its prodigious research lightly, restricting its specialized evidence to fifty pages of endnotes from legal decisions and over twenty archive collections, as well as articles and books. The carefully and gracefully written chapters feature compelling, sometimes gripping, narratives that assume no previous familiarity with legal thinking and writing or with the specific laws.

What narratives they are! To protect American writers from competing with imported works, U.S. copyright law through most of the nineteenth century created a “legal void—the legislated absence of copyrights for foreign authors” (49). Works published abroad entered the American public domain immediately upon their publication. Like Leopold Bloom “proceed[ing] energetically from the unknown to the known through the incertitude of the void” (U 17.1019-20), U.S. publishers produced legal but unauthorized reprints, offering no compensation to the authors, and they were branded as pirates, even though they operated entirely within the law. So, the term “pirate” referred pejoratively to both the illegal reprinter of protected works and the unauthorized reprinter who brought creations by foreign authors into the U.S. Such “lawful piracy” (169), Spoo argues, was “a necessary condition of American literary culture in the nineteenth century” (28).

Countering this chaos was the informal practice called “trade courtesy,” which publisher Henry Holt described as “self-regulation without law” (34, 36).² Ostensible competitors treated the first company to release a work by a public-domain author as the sole, unofficially authorized publisher. Even with no legal requirement to pay the author royalties, many firms did that. “American copyright law made pirates of honest men,” Spoo claims, “so they banded together to act honorably according to voluntary norms of fairness that took the place of law” (42). Revisions to the copyright law in 1891 and 1909 allowed foreign works to secure an American copyright, but resetting by American typesetters and printers, immediately or soon after their original appearance, was required. This “manufacturing clause” altered the public domain significantly, but its stringent demands severely hindered many foreign authors, including Joyce when Ulysses was published in Paris in 1922 (69).

The practice of trade courtesy included both norms of conduct and a range of punishments for violating them: “mild remonstrance, angry protest, public shaming, refusal to deal, predatory pricing, and outright retaliation” (43). Especially prominent was the dreaded epithet “pirate,” which, in a third usage, defined someone who acted within the...