I think it is appropriate to post this blog on Canada Day, July 1, the day that marks Canada’s gradual transition from colony to nation, because it sheds light on the struggle that the new dominion faced in the years after Confederation in 1867 to assert its political independence from Britain, the imperial power and its economic independence from its powerful neighbour, the United States.
This is a complex story of book piracy in the 19th century and how this became a factor in Canada’s search for identity and full political independence. It features a Canadian “pirate publisher” who, most famously, printed unauthorized editions of Mark Twain’s Adventures of Tom Sawyer and sold them by mail order across the border to American readers before the author had published his work in the US. But it is also a story of American publishers pirating British works, notably Charles Dickens, and British piracy of US authors. In fact, since in those days it was legal to publish without authorization the works of non-nationals (copyright applied only to residents of the country where the work was first published), one has to question whether this was true piracy. In the end international book piracy was sorted out through the establishment of the Berne Convention in 1886 and passage of reciprocal copyright legislation (the Chace Act) in the US in the 1890s. For Canada, this is an illustrative example of the challenges the new nation faced in developing its own publishing industry and national literary identity, handicapped as it was by its semi-colonial/semi-independent status and caught between a growing economic colossus in the US and Imperial administrators in London.
This is an account of how the Canadian publishing industry found itself caught in the crossfire of the British-US copyright wars of the 19th century, resulting in an underdeveloped publishing sector that until recent years was seen by many to have held back the blossoming of Canadian literature and Canadian authors. It is a story of book piracy on both sides of the Canada-US border, and both sides of the Atlantic. The issue has been well researched and documented, notably by Prof. Eli MacLaren of McGill University in his book “Dominion and Agency”, (University of Toronto Press, 2011), but I think it is fair to say that this specialized topic is unknown to most readers of this blog. So let’s pull aside the curtain.
Today, Britain, the US and Canada are all pretty much on the same page when it comes to copyright protection, especially now that Canada will soon be aligning its term of protection with that of the UK, the EU and the US, as a result of a commitment made in the renegotiation of NAFTA, the North American Free Trade Agreement now labelled, in the US, the USMCA (US-Mexico-Canada Agreement). Coincidentally the USMCA comes into effect today, July 1, although Canada’s commitment to extend its term of copyright protection will not take effect for 30 months.
Although the US is still not completely happy with Canada’s copyright regime, judging by the comments of the US copyright industry association, the IIPA (International Intellectual Property Alliance) in its recent submission to the US Trade Representative’s annual review of the IP standards in place in various foreign countries, all three countries are nevertheless members of the 1886 Berne Convention, (to which 178 countries have acceded) and are signatories to the Trade Related Intellectual Property (TRIPS) commitments of the World Trade Organization (WTO) and other international conventions relating to copyright. Mind you, the US did not join Berne until 1989 and Canada was initially a reluctant participant, becoming a member involuntarily only because it was a part of the British Empire at the time the Convention came into being. Today, because of Berne, British, US and Canadian copyrighted works are afforded national treatment in each other’s countries, (although in some instances foreign copyrights get better than national treatment in the US because they are afforded Berne Convention privileges which are better than those provided to US copyright holders by US legislation.)
Back in the 19th century this was not the case. While Britain and the US had similar conceptions of copyright, coming from the wellsprings of the 1710 Statute of Anne in Britain and the 1790 Copyright Act in the United States, copyright protection was initially provided to only domestic authors and printers. Until the passage in the US of the International Copyright Act (aka the Chace Act) in 1891, copyright protection was provided in the United States only to US residents—and then only to those who registered their works in the approved fashion, and had the works printed in the US. In Britain too, initially copyright protection was restricted to British subjects, a definition that included residents of the Empire (like Canada at the time) and, as in the US, there were registration and publication requirements. However, while Canadian authors had the benefit of copyright protection throughout the British Empire, the works had to be registered (a copy deposited at Stationer’s Hall) and printed in London. Imperial copyright was thus a great boon to the London publishers who had an effective monopoly on printing and distributing British and colonial works throughout the Empire, but it did little to help promote Canadian publishing. It was an uneven playing field that favoured the imperial power.
This situation was not rectified until Canada and the other parts of the Empire became members of the Berne Convention in 1886. An example of the way in which the laws were tilted to British advantage was brought home forcefully in the 1830s when pirate editions of one of the earliest Canadian works, The Clockmaker by Thomas Chandler Haliburton, were printed in London with no regard to the Canadian publisher. (MacLaren, 26). This was all perfectly legal at the time.
The result of this situation where protection was afforded only to domestic authors and publishers led to widespread unauthorized printing of British works in the US, about which Charles Dickens famously complained during his visit to the United States in 1842, without getting much sympathy. He was surprised to be attacked for his “mercenary” attitude. Dickens was by no means the only English author whose work was regularly pirated in the US. English writers were popular in the US market and US publishing houses, while required to pay royalties to American authors, had a business model of producing cheap unauthorized editions of British works. American writers, such as Edgar Alan Poe, suffered the same fate in the UK, but given the size of the American market and the number of well-known British authors (the “must-haves” of the 19th century) who were popular in the US, the main problem lay on the American side of the Atlantic. In the end the problem was partially dealt with by US printers requesting and paying a “courtesy of the trade” fee to the main British publishing houses for advance copies of about-to-be released books. This gave them a commercial advantage over other American reprinters by getting their editions to the market first. This fee took the place of royalty payments, but was still deemed unsatisfactory by many British authors.
But what did all this mean for Canada? The unauthorized US editions of British works were blocked from entry into retail trade in Britain, where customs inspection was relatively easy given the maritime nature of trans-Atlantic trade, but it was much more difficult to prevent the US copies from entering Canada across an ill-marked and lightly patrolled land border. As a result, Canada was caught in the middle of this copyright war.
As a country subject to imperial copyright, it was obliged to protect the rights of British authors, but importing expensive books published in London was not what the residents of a frontier colony wanted. Just across the border in the US it was possible to buy the latest books by the best English authors (i.e. the unauthorized American printed editions) at a fraction of the cost of importing them from Britain. Needless to say there was a brisk cross-border trade and Canadian booksellers regularly sourced their books in New York, Boston and in other US cities. So prevalent was this practice that in 1847 the British government recognized the inevitable. It regularized the cross-border Canada-US book trade with the Foreign Reprints Act. This piece of legislation allowed Canadians to import the unauthorized US editions of British works, subject to the payment of a levy that would be remitted to the British Board of Trade for distribution to British rights-holders. It was a sound idea in principle, combining practicality on the ground with the need to respect British copyright law.
The problem was that it didn’t work. Canadian border officials (who were not experts on literature and who had to work from outdated and incomplete lists) had difficulty in determining which works printed in the US were subject to the special duties, and since the colonial government derived no benefit from the revenue–which was to be remitted directly to Britain–enforcement was lax. Very little revenue was actually collected. The Canadian printing industry would have preferred an alternative that would have given them the right to print British works in Canada (under a compulsory licence) and remit royalties to Britain, but the imperial government had decided on the import licence scheme. As a result, the Canadian market came to be dominated by unauthorized US published versions of British works with almost no revenue raised for British copyright holders.
Meanwhile Canadian printers were lobbying the British government to find a way to supply the domestic Canadian market with works by English writers from within Canada, rather than importing the unauthorized US editions of British works. In effect, Canadian pirates wanted to take the Canadian market from American pirates. In 1867 the various British North American colonies came together to establish the Dominion of Canada (as it was called at the time), which was to be largely self-governing. Regulation of copyright was one of the powers given to the Dominion government. In 1872 the Canadian government passed legislation that would have allowed Canadian publishers to publish unauthorized editions of British works, subject to a compulsory licensing fee. It was argued that this could be much better enforced than the import levy on US published books of British authors and would result in more revenues for British rights-holders, while promoting publishing in Canada at the expense of US publishers.
The legislation was passed by Parliament but disallowed by the Governor-General, the Queen’s Representative whose assent was necessary to allow legislation to come into effect. The same system of royal assent exists today except that by convention the Governor-General will not disallow duly passed legislation. In the 1870s that was not the case and the royal prerogative exercised by the Governor-General was subject to influence from London. Thus Canada’s publishers found that their interests were thwarted by Canada’s semi-colonial status as a result of the influence of the London publishers and the British government. The former wanted to protect their market in Canada, while the latter wanted to achieve a reciprocal copyright treaty with the United States, and was concerned that if Canadian publishers could produce cheap reprints of British works, as was occurring in the US, and export these books south of the border, this would complicate negotiations toward a Britain-US Reciprocal Copyright Treaty.
In 1875 a Canadian Copyright Act was finally passed and given royal assent with British approval. It created a system of Canadian copyright, giving rights to Canadian authors and publishers in the Canadian market. However, as subsequent legal cases were to determine, the existence of Canadian copyright did not negate imperial copyright. Thus in cases where a Canadian publisher, such as the Belford Brothers, began independently producing unauthorized Canadian editions of British works, on the basis that British copyright no longer applied, they were struck down by the courts.
The Belfords then proceeded to pirate US authors in Canada, notably Mark Twain (Samuel Clemens). Twain’s The Adventures of Tom Sawyer was first published in Britain to obtain imperial copyright but before the US edition could be printed, the Belfords printed a pirated version in Canada from the British edition, and sold over 100,000 copies in the US, largely via mail order, causing Twain significant financial loss. Twain was particularly incensed by what he called the “Canadian thieves” and wrote, “I can’t trust any more Canadians after my late experience. I suppose they are all born pirates.” In an attempt to secure Canadian copyright for a subsequent book that was being granted imperial copyright through publication in London, he took up temporary domicile in Montreal. However, since US law required that an author be a permanent resident to qualify for US copyright protection, Canada applied the rule reciprocally and disallowed Twain’s claim. Twain’s frustration with the Canadian pirates led to his advocacy for recognition of international copyright by the United States, which was to occur in 1891.
Because it was illegal for Canadian publishers to pirate British works whereas publishers in the US could do so legally until 1891, the argument has been made that this stunted the Canadian publishing industry and made the development of a national literature more difficult. It is worth noting that Canadian publishers like the Belfords showed no lack of ingenuity in pirating US authors, and for a time enjoyed financial success. (They later went bankrupt and moved to Chicago where they established another publishing enterprise).
By the same token, there is no doubt that the pirating of British works by US publishers contributed to the initial growth of the US publishing and printing industry. This industry became a powerful political lobby which resisted changes to its business model. At the same time, the dominance of pirated British works in the US market in the 19th century arguably made it more difficult for American writers to flourish. As stated by the noted American historian Arthur M. Schlesinger in his book “The Rise of the City, 1878-1898”, (New York, MacMillan, 1933, p.252), “So long as publishers […] could reprint, or pirate, popular English authors without payment of royalty, and so long as readers could buy such volumes far cheaper than books written by Americans, native authorship remained at a marked disadvantage”.
While American literature grew in stature during most of the 19th century, it flowered after the International Copyright Act (Chace Act) was passed in the US in 1891. That legislation provided for reciprocal recognition of copyright between the United States and four entities; Britain and the British Empire, Switzerland, Belgium and France. While this allowed for British and Canadian works to be protected in the US, such protection was contingent on certain measures that protected the US printing industry. To obtain the benefits of US copyright protection, the work had to be printed from type set on American soil and deposited at the Library of Congress before being published elsewhere. (MacLaren, 11, 109). This protectionism mirrored earlier British protection of its printing industry. After 1891 however, US works were not subjected to similar conditions in Canada. Their copyright was protected without any requirement to print in Canada.
Thus Canadian publishers could not serve the US market with unauthorized reprinted British works, and they could no longer produce pirated editions of US works for the Canadian (or US) market. It was equally difficult for Canadian publishers to obtain authorization to reprint British works in Canada since British authors and publishing houses had little incentive to print separate Canadian editions because imperial copyright prevailed in Canada. In fact, they often granted “North American rights” to US publishers whom they licensed. Often this was in response to demands from US publishers who wanted to shut down potential Canadian competitors and keep the Canadian market for themselves. Thus the grant of reciprocal copyright protection between Britain and the US did little for Canadian publishing.
Subsequent Canadian legislation passed in 1889 would have required publication in Canada as a condition for obtaining Canadian copyright by instituting the earlier proposed compulsory licence for reprinting of British copyright works in Canada if the British publisher did not arrange for the publication of a Canadian edition within 30 days of release in Britain. This 30 day period was to allow British publishers to use the original plates and not have to invest in duplicates (as they were later required to do in order to obtain US copyright under the Chace Act). However, like the 1872 Bill, the 1889 Canadian Copyright Bill was killed by the British government through the office of the Governor-General. As archivist and historian Meera Nair has described it;
“The British government’s desire for harmony with the United States, its conformity to international regulations of the day, and its penchant for uniformity throughout the Empire, took precedence over any legislation designed to meet Canada’s particular needs.”
To sum up, in the latter half of the 19th century Canada was coming into being as a nation, finding its way and trying to develop a national consciousness. Its semi-colonial status dictated that its interests came second to those of the imperial power, Britain, in issues that ranged from foreign policy and boundary disputes to copyright. Its economic relationship with its larger North American neighbour, the United States, meant that it was vulnerable to US market forces, such as the supply of cheaper unauthorized versions of popular British works that supplied the Canadian market. Owing to its status as a dependent state within the British Empire, it was unable to follow the US model of producing these works without payment of royalties, which in the US had resulted in the establishment of a robust publishing industry initially built largely on distribution of pirated editions. Notwithstanding these obstacles, Canadian publishers played their own version of the game, pirating US authors such as Mark Twain, even exporting unauthorized copies to the US market.
The eventual resolution of the US-British copyright wars through the passage in the US of the 1891 International Copyright Act strengthened the rights of authors but did little to help Canadian publishers. In a supreme irony, prior to the US joining the Berne Convention in 1989, many US publishers published first in Canada (through Canadian subsidiaries of US publishing houses) in order to obtain the benefit of the international copyright protection afforded by the Convention since Canada was a member of Berne and the US was not. This became known as the “back door to Berne”.
Despite the many obstacles it has faced, today Canadian literature is thriving and Canada has a small independent publishing industry, albeit one that is still economically challenged. Copyright protection in the three countries has been largely harmonized. While many well-known Canadian writers are represented by British or American publishers, this does not seem to have stopped the development of Canadian literature (“CanLit”).
Does a country need a strong national publishing industry in order for local creativity to blossom and thrive? It no doubt helps, but quality writing seems to get published regardless of the source. Does the fact that Canada was not easily able to develop a domestic publishing industry (based initially on pirating the works of others) mean that its creative development was stunted? Possibly, but impossible to prove. Meera Nair has quoted writer and university professor Nick Mount as attributing the explosion of CanLit to post WW2 affluence and an explosion of Canadian self-awareness brought about by the centenary of Confederation in 1967. If that is true, then the 19th century struggles of Canadian publishers may not be all that relevant to Canadian identity at the end of the day. What is clear is that in the area of copyright and publishing, imperial (British) economic and political interests prevailed over those of the nascent Canadian publishing industry, an inevitable outcome of Canada’s semi-colonial status at the time.
The story of how Canada struggled to develop its own “made in Canada” copyright policy in order to establish a domestic publishing industry without being crushed by British or US publishers is an interesting and little known aspect of 19th Canadian political history. As for Canadian literature, it took a century to develop, but develop it did despite the games played by publishers on both sides of the Atlantic.
© Hugh Stephens, 2020. All Rights Reserved.
I am indebted to Dr. Meera Nair, copyright historian, for reviewing this blog post and clarifying and correcting a number of facts. The interpretations and conclusions of the blog are, however, my own.