Benjamin Franklin, Copyright Pirate

America's most famous copyright pirate was probably Benjamin Franklin (1706-1790), who as everybody knows was a writer and inventor of some renown and a founding father of the United States. He was also a Philadelphia printer and a publisher of principle, as the following heartwarming story, taken from Ronald W. Clark's 1983 biography of Franklin, amply illustrates.

“In the early days of The Pennsylvania Gazette a contribution was brought into the office with the request that Franklin publish it... Franklin asked that the piece should be left to the following day, when he would decide about printing it. The person returned at the time appointed, and received from Franklin this communication: 'I have perused your piece and found it to be scurrilous and defamatory. To determine whether I should publish it or not, I went home in the evening, purchased a twopenny loaf at the baker's, and with water from the pump made my supper; I then wrapped myself up in my great-coat, and laid down on the floor and slept till morning, when, on another load and a mug of water, I made my breakfast. From this regiment I feel no inconvenience whatever. Finding I can live in this manner, I have formed a determination never to prostitute my press to the purposes of corruption, and abuse of this kind, for the sake of gaining a more comfortable subsistence.'”

But Franklin's principles didn't inhibit him from re-publishing the works of eighteenth century British authors without seeking their permission or offering remuneration, and he was not alone. In the Outline of American Literature, published by the US Department of State, it is asserted that:

"Printers everywhere in America followed (Franklin's) lead. There are notorious examples of pirating. Matthew Carey, an important American publisher, paid a London agent - a sort of literary spy - to send copies of unbound pages, or even proofs, to him in fast ships that could sail to America in a month. Carey's men would sail out to meet the incoming ships in the harbor and speed the pirated books into print using typesetters who divided the book into sections and worked in shifts around the clock. Such a pirated English book could be reprinted in a day and placed on the shelves for sale in American bookstores almost as fast as in England."

A penny a time

The poet William Wordsworth began to complain about the situation as early as 1808, and in the 1830s lobbied the House of Commons, with the assistance of the (then) popular dramatist, barrister and politician Thomas Noon Talford, who introduced a Copyright Bill into the British Parliament in 1836, which eventually became law in 1842.

Talford was also a friend of Charles Dickens, whose work was also heavily pirated. Dickens dedicated The Pickwick Papers to Talford in recognition of his work on behalf of authors whose texts had been appropriated without any financial return. In 1844, Talford, in his role as a barrister, acted for Charles Dickens against Richard Egan Lee and Henry Hewitt after they had published an unauthorised, condensed and scrambled edition of A Christmas Carol in England under the title A Christmas Ghost Story and sold for a penny a time.

British authors could only make claim to royalties from American publishers by establishing residency, but were seldom allowed recompense even then. Captain Marryat (1792-1848), who sailed with Admiral Cochrane, and wrote popular yarns based on his experiences during the Napoleonic Wars, established US residency by means of an American speaking tour in 1837, "but was denied copyright protection by the American courts unless he were prepared to renounce his status as a British subject and become an American citizen."

(As an aside, Admiral Cochrane not only provided the inspiration for the yarns of Captain Marryat, but was also the model for Forrester's Hornblower and the sea adventures of Patrick O'Brien. An unlikely hero of the Napoleonic Wars, he later became a radical Member of Parliament, was disgraced and pilloried on trumped-up charges, went into exile, and became a leader, with Bernardo O'Higgins, of the liberation of Chile from Spanish rule.)

What the Dickens?

An angry Dickens, who used his speaking tours to denounce the theft of copyright by American publishers, even claimed that the early death of Sir Walter Scott through overwork, in debt and "unjustly deprived of his rightful income," was directly attributable to the exploitation and theft of his copyright by American publishers.

Dickens visited America on speaking tours in 1842 and 1867-68, and lobbied the American Congress to recognize the copyright of British authors, without success. During these tours Dickens used the opportunity to berate audiences for pirating his books.

Piracy was rampant because the United States refused to sign international agreements protecting copyright, in the belief that this would damage its own publishing industry. Dickens argued that piracy, the cheap reprinting of works by overseas authors, also restricted the opportunities for American authors, since who would pay the royalties to publish the work of unknown American writers, when the likes of Dickens could be published for free?

Echoes of the past

None of this would matter, except for the echoes of these pleas that we hear in our own times, coming not from individual writers, but from trillion dollar film studios, record and software companies.

According to the Outline of American Literature: "The copyright law of 1790, which allowed pirating, was nationalistic in intent. Drafted by Noah Webster, the great lexicographer who later compiled an American dictionary, the law protected only the work of American authors; it was felt that English writers should look out for themselves."

The arguments are remarkably familiar, and are reminiscent of the arguments now used against Western governments and corporations in their negotiations with the rest of the world through the World International Property Organization (WIPO). Britain was rich and powerful, and America was still a young country, in search of of an expression of a culture that it could call its own, which defined its own unique identity.

"Bad as the law was, none of the early publishers were willing to have it changed because it proved profitable for them... the cheap and plentiful supply of pirated foreign books and classics in the first 50 years of the new country did educate Americans, including the first great writers, who began to make their appearance around 1825." So that's alright then.

American copyright law was not reformed until 1891. Even then, no compensation was provided for works published before that date, and at the behest of the American print unions, a clause was inserted that required that in order for a work to be copyrighted it must contain a copyright notice and be registered at the US Copyright Office, which effectively meant that the first editions of a work had to be printed in the US for the book to be eligible for copyright protection.

The Berne Convention for the Protection of Literary and Artistic Works was instigated by the French author Victor Hugo and drawn up in 1886, but the US didn't become an active participant until 1989.

It's a Disney world

Nowadays, of course, the US is at the forefront in pushing for worldwide copyright legislation, and it is the 'young' newly independent countries of the developing world where 'piracy' is alleged to be rampant. Works are pirated and sold at knock-off prices, with no return for the creative artists, or the corporate copyright holders, who are often underpaying the artists for their rights anyway. But it is no longer the authors or musicians who are leading the drive for international copyright enforcement.

It is the music, film and software industries who stand to reap the biggest rewards, and the authors and original creators are much further down the food chain, still providing revenue for their corporate lords and masters long after they are dead - like James Joyce, or Picasso, whose name is used to sell Citroen, or Walt Disney, whose Mickey Mouse cartoons are the excuse for extending copyright into infinity, and poor John Clare, the peasant poet, whose work is still the subject of a copyright dispute one hundred and forty years after his death, although he himself barely earned a penny for his work during his lifetime...

Richard Hillesley

See also:
A Better Silence - John Cage and Copyright


American thieves?

Percy Bysshe Shelley's early feminist poem Queen Mab was also pirated in America in 1820 or so. A friend of his found a copy on a Calcutta paper stall - which, I seem to remember, is how the poet learned of its existence.

A simple solution.

The simple solution to the needs of creators and consumers is to have IP protection (copyright & patents) and defend it rigorously but also protect fair use and limit the lifetime of protections given. More a patent issue than copyright but price is also an issue - it should be affordable to initially get protection and to defend your rights.

I suggest offering copyright and patent protection, only when formally registered, starting with a low registration fee of a $1 for the first year. Every year double that fee to extend the protection for an additional year. So long as the IP remains more valuable to the holder than the fee then they can keep it but they won't keep their protection indefinitely for every minor work just because they can. The creator will be protected and allowed to profit from their work but also encouraged to create new works. The consumer will be insured that at some point they will freely have access to all of our cultural heritage and technical advancements. Meanwhile the government can benefit from collecting the registration fees needed to do everything from pay those in the court system to judge infringement cases to sponsoring new works to be created.

I'd also suggest strong trademark protection that is allowed to endure. Just because Mickey Mouse cartoons become public domain doesn't mean the brand will be diluted. Altered versions would need to be clearly marked as such or would be unable to use any trademarks.

It'd be a good idea for the government to be more active in sponsoring artistic and scientific works too - holding on to part of any revenue generated from those works. Why pay taxes when the sale of books, music, wonder drugs, and gizmos can cover our needs? We already make money this way and there is no reason not to make more. NASA earns our government far more money than it costs and yet we foolishly want to cut back on spending on research. That's the way to spend a dollar to save a penny.

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