Copyrights? – Nineteenth Century USA Was a Major Center of Piracy

The international Internet Society and it’s New York Chapter announced to host an Open Forum Discussion on a new Copyright Alert System aimed at warning Internet users about illegally downloaded content.

This is also an interesting topic in Cambodia, entering more and more into the age of information societies.

This system has been developed by the Center for Copyright Information, an association of business organizations in the USA, with a membership of the associations of big movie and music sellers in the USA, as well as different Internet Access Providers for such products: Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA), AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon.

From the announcement:

The Copyright Alert System is a collaborative effort between content creators in the USA and five leading US Internet Service Providers. According to this system, if copyright infringement is detected after a final warning, the ISPs are required to implement penalties, including bandwidth throttling and disconnection of Internet service.

The Internet Society, bringing together for the first time several representatives and members of the Center for Copyright Information along with a broad range of industry organizations and public interest advocates, hopes to initiate a robust dialogue regarding the effectiveness of this new mechanism.

’The Internet Society supports the development of a robust digital content environment that will foster the continued growth and development of an open, global Internet,’ said Paul Brigner, Internet Society Regional Bureau Director, North America [and a former Chief Technical Officer of the Motion Picture Association of America]. ‘The launch of the new Copyright Alert System has generated a great deal of discussion, and the Internet Society and its New York Chapter felt it was important to convene these panels to discuss this important topic. This event will give participants the opportunity to join in the dialogue and to reflect on the effectiveness of the Copyright Alert System. The event will seek to provide information and exchange ideas regarding the operation of Copyright Alert System, its strengths, weaknesses, and the challenges that lie ahead.’

It is not surprising that representatives of the involved industry are interested to convene such an event. It is also not surprising that the Internet Society is assisting a public exchange of related information and ideas.

What is really surprising is that a number of related basic problems are not addressed at all in an event announcement which is “to discuss strengths and weaknesses” – with a stated goal “to reflect on the effectiveness of the Copyright Alert System” – which looks similar to an automatic law enforcement system – without any reference to the international discussions going on since several years relating to the present system of copyrights, its history in the pre-Internet age, and its problems. And while “several representatives and members of the Center for Copyright Information along with a broad range of industry organizations” are identified, it is not clear who the participating “public interest advocates” might be.

In the wider context considering copyrights, the following references point to fundamental challenges beyond the simple enforcement of laws and regulations.

For example, the International Federation of Library Associations published in 2004 the following considerations:

Limitations and Exceptions to Copyright and Neighboring Rights in the Digital Environment: An International Library Perspective

The International Federation of Library Associations and Institutions represents the interests of libraries and information services as well as the users of such services worldwide.

Libraries are major purchasers of information in print, analogue and digital formats and wish to ensure lawful, equitable access to knowledge contained in such works.

IFLA believes that the economic rights of information providers must be balanced with society’s need to gain access to knowledge and that libraries play a pivotal role in this balance.

The digital environment has the potential to support access for all members of society, especially those in developing countries and in disadvantaged groups, but this will not happen unless intellectual property laws continue to be balanced with effective limitations and exceptions.

IFLA believes that exceptions and limitations to copyright, which exist for the public good, are being jeopardized by the increased use of technological protection measures and licensing restrictions.

The United Nations Educational Scientific and Cultural Organization – UNESCO – has dealt repeatedly with the role of traditional copyright regimes and related problems.

Also the World Intellectual Property Association – WIPO – has agreed that “balance between various stakeholders’ interests needs to be recalibrated” – “its debate has been focused mainly on three groups of beneficiaries or activities in relation to exceptions and limitations – on educational activities, on libraries and archives, and on disabled persons, particularly visually impaired persons.” From a WIPO statement:

Limitations and Exceptions

In order to maintain an appropriate balance between the interests of rightholders and users of protected works, copyright laws allow certain limitations on economic rights, that is, cases in which protected works may be used without the authorization of the rightholder and with or without payment of compensation. Limitations and exceptions to copyright and related rights vary from country to country due to particular social, economic and historical conditions. International treaties acknowledge this diversity by providing general conditions for the application of exceptions and limitations and leaving to national legislators to decide if a particular exception or limitation is to be applied and, if it is the case, to determine its exact scope. Due to the development of new technologies and the ever-increasing worldwide use of the Internet, it has been considered that the above balance between various stakeholders’ interests needs to be recalibrated.

It will therefore be interesting to see how the international Internet Society – “The Internet is for Everyone” – will handle this discussion, which, according to the announcement, will give participants only the opportunity discus the effectiveness of the Copyright Alert System, which even gives business the position to make legal judgments on content downloaded by users and subsequently to limit or discontinue their services – something that in a number of countries could be done only based on the judgment of a court.

As affairs in the USA often have an effect on other countries, we are of course extremely interested also in Cambodia – where, it is estimated, that around 80 % of software in use is shared without having been licensed.

In order not to be misunderstood as if these considerations were a call “to break the law” I would like to add a number of historical reflections, why a call to “legality” is not sufficient in a context where other overriding questions of the situation of a country also have to be considered.

It may be interesting to remember here that the United States of America has for a long time rejected to recognize international copyright protection – insisting that to use for free what they, as a developing country, needed from England. It is surprising that these historical facts are hardly ever remembered in the present discussions and negotiations relating to “pirated” software. Pirates kill when they cannot get what they want. In spite of the fact that not legally paid for software is in use in Cambodia – “pirated” software – the original producers were neither violently attacked, nor do they seem to be suffering much, as they are still among the biggest companies in the world.

Roberto Verzola, a social activist from the Philippines, has written a book Towards a Political Economy of Information, from which I quote some sections related to the history of refusing international copyrights in the USA in various ways – even up to as late as 1989, when the USA finally acceded to the Berne Convention for the Protection of Literary and Artistic Works.

The United States of America, at the time when it was a developing country, “wanted the freedom to borrow literature as well as technology from any quarter of the globe” and therefore publicly and officially rejected international copyright protection for a long time. Now the USA is an economic superpower, and those who want the same as the USA wanted in the 19th century, are called illegal “pirates.”

International organizations like UNESCO and even WIPO start to recognize the problematic social justice implications when imposing the same rules on the rich and the poor. The Internet Society’s New York meeting is focused on the situation within the USA.

Whatever the outcome, it probably will have implications for many Internet users also outside of the USA.

Some quotes from Roberto Verzola’s book (the full text is made available here as a PDF file of 1.3 MB)

Towards a Political Economy of Information

U.S. Piracy in the 19th Century

Nineteenth century America was a major center of piracy. The principal target of U.S. pirates was the rich variety of British books and periodicals. The U.S. was a perennial headache among British authors and publishers, because foreign authors had no rights in America. American publishers and printers, led by Harpers of New York and Careys of Philadelphia, routinely violated British copyright and “reprinted a very wide range of British publications.”

James Barnes, who wrote an excellent book on this subject, said that the Americans were “suspicious about international copyright,” and were afraid that recognizing international copyright meant “exploitation and domination of their book trade.”

Barnes noted that “as a young nation, the United States wanted the freedom to borrow literature as well as technology from any quarter of the globe, and it was not until 1891 that Congress finally recognized America’s literary independence by authorizing reciprocal copyright agreements with foreign powers.”

Throughout the 19th century, a group of American authors and Anglophiles led a persistent but futile campaign to get a copyright treaty between the U.S. and Britain ratified. But their efforts were overcome by a much stronger lobby for free access to British publications. Authors like Noah Webster of the U.S. and Charles Dickens of Britain campaigned vigorously, but time and again, the U.S. Senate rejected proposed laws or treaties that would have granted copyright to foreign authors in the U.S.

Indeed, strong laws existed for the protection of local authors, but foreign authors had no rights in the U.S., and all foreign works were fair game for American publishers and printers. As Barnes put it, “If Americans thought of the topic [i.e., copyrights] at all they were concerned with protecting domestic copyright and not the rights of foreigners. As a country, nineteenth­century America was akin to a present­day underdeveloped nation which recognizes its dependence on those more commercially and technologically advanced, and desires the fruits of civilization in the cheapest and most convenient ways.”

Barnes continued: “In 1831, ‘An Act to Amend the Several Acts Respecting Copyrights’ was signed… But not a word on international copyright. In fact, foreign authors were explicitly barred from protection, which in essence safeguarded reprints.”

Even the U.S. president at that time, John Quincy Adams, was himself “strongly opposed to international copyright.”

In 1837, Senator Henry Clay introduced a copyright bill before the U.S. Senate. Within days, “a flood of negative memorials reached Washington,” and objections deluged both houses of Congress. The U.S. Senate’s Patent Committee rejected “the intention of the measure,” its reasons sounding very much like the justification today of Third World countries for their liberal attitude towards intellectual property…

Thus, overwhelming opposition from various quarters,… continued to block any effort that would have granted copyrights to foreign authors in America. Not even the hired services of topnotch Washington lobbyists, as well as attempts in 1852 to bribe members of the U.S. Congress and the U.S. press, could get an AngloAmerican copyright treaty passed…

Several bills were introduced in 1870, 1871 and again in 1872, but they were all opposed by American publishers and the printing unions, because they would… “permanently injure the interests of book manufacturers.”…

And so it went. In the early 1880’s, the copyrights movement gained more strength, but not quite enough to overcome the more powerful forces that benefited from free and unrestricted access to foreign publications. By this time, however, the U.S. had already accumulated a wealth of American-authored works which were themselves widely reprinted abroad. American books like Uncle Tom’s Cabin became quite popular in England. Also, U.S. authors and their publishers had acquired considerable political clout. The U.S. was ready to “protect” foreign authors, so that it could in turn demand protection for American authors abroad.

In July 1891, the U.S. Congress adopted the Chace International Copyright Act of 1891, establishing a framework for bilateral copyright agreements based on reciprocity.,, it also set very difficult conditions, reflecting the interests of the U.S. publishing industry:

  • 1. A foreign book had to be published in the U.S. not later than its publication in its home country.
  • 2. All manufacturing of books, photos, chromos and lithographs had to be done in the U.S. (This is the so­called “manufacturing clause”, which is today protested by the U.S., when Third World governments adopt it to ensure that a technology is actually worked in their own country.)…
  • 4. Foreign works published before 1 July 1891 may not be copyrighted.

In 1952, the U.S. joined the Universal Copyright Convention (UCC), but not the Berne Convention, which was considered the “premier instrument of international copyright.” Under the UCC, the U.S. retained such protectionist measures as the requirement of manufacture in the United States.

In the meantime, the U.S. had been exerting tremendous pressures against Third World governments to adopt strict intellectual property laws and to strengthen their enforcement. By the late 1980’s, a number of governments, including Singapore, Hong Kong, Taiwan and South Korea in Asia, had finally succumbed to U.S. pressure.

And so in 1989, the U.S. finally and belatedly acceded to the Berne copyrights convention.

1989 – a really surprising date.

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