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Monday, 9 May 2011

The Copyright Tribulations of Thomas Jefferson


This Kat remembers that it was not so long ago (the late 1980s) that he was struggling to figure out how to fashion contracts with Chinese publishers for the publication of Hebrew literature in Chinese translation. This was not like the U.S. situation where, before March 1989, while the U.S. did not yet belong to the Berne Convention, it was still tied by other international treaties (most notably the Universal Copyright Convention) and various bilateral arrangements.  By contrast, when Israel and China were concerned, those were the days of the Wild East, at a time when the two countries were not tied together by any treaty that might bear on copyright. The result was that we scrambled with our Chinese partner to find some set of contractual arrangements that might provide my client with a modicum of protection. I never had to find out whether these arrangements could withstand challenge, both legal and practical, but the experience did highlight for me that, while copyright has a degree of uniformity, it is also a matter of specific time and place.

I was reminded of this in an unlikely circumstance, the reading of a nifty short book by Lee Dugatkin, Mr. Jefferson and the Giant Moose, here. The book (the cover alone is worth the purchase price) tells the story of how Thomas Jefferson, the fabled draftsman of the Declaration of Independence and the third president of the U.S., sought to combat the widespread notion (especially in France) in the 1770s and 1780s that the New World was hopelessly degenerate and that everything and everyone -- man, woman, beast and plant -- was doomed to degeneracy.

Dramatically, in 1784-1785, Jefferson arranged to have the carcass of a seven-foot tall moose dragged 20 miles in the snow and then sent from the New England coast via boat to Paris, where Jefferson was serving as minister plenipotentiary on behalf of the fledging country. The thinking was that he would show the carcass, bigger than any similar animal found in Europe, to his French skeptics, most notably the French naturalist Buffon, and thereby forever silence their bantering about New World degeneracy (it was Buffon who was the moving force in promoting the degeneracy theory).

But Jefferson, who was as good a naturalist as he was a political thinker, also sought to refute the notion through the writing of the only book that he ever published, Notes on the State of Virginia. In the book, he sought to describe Virginia from the eye of an accomplished 18th-century naturalist. And it is here that his copyright tale takes place.

Jefferson had drafted the Notes in manuscript fashion when he set sail to Paris. Once there, he sought a Parisian printer who could print the book in English. He found such a printer -- a Mr Pierres -- who did so, printing 200 copies. That said, Pierres intentionally omitted Jefferson's name from the book and listed 1782 rather than 1785 as the relevant year.

Apparently, Jefferson's thinking was that he could control distribution by choosing to whom to distribute these copies, with no intention that the book would reach "the public at large." But, alas, Jefferson did not succeed. Word of the book spread throughout Paris, and a certain Mr Barrios obtained a copy, from which he then intended to produce a translation without the perm ission or involvement of Jefferson. Accordingly, Jefferson sought to have an authorized translation made with his involvement, and to that end he engaged Abbe Morellet. Alas, even with Jefferson's collaboration, the end product was a disaster. Jefferson described it as "so wretched an attempt at translation .... abridged, mutilated, and often reversing the sense of the original, I found it a blotch of errors from beginning to end."

Not surprisingly, only Jefferson's initials appeared on the front page of the translation. The upshot seems to have been that there were two French versions, one unauthorized (we are not told about the quality of that translation) and the other a failed attempt at translation with Jefferson's help. As a result, Jefferson was extremely concerned that the public would believe the flawed French form of the book was the "accurate" text (remember: he had never intended that the book be distributed to the public). To forestall this, Jefferson authorized a publisher in England, John Pritchard, to publish the work for the general public (as it then was) in 1787, and a year later he arranged for an American publisher, Pritchard and Hall, to do so as well in the U.S.


What a cornucopia of copyright issues is presented here! At the time of these events, there was no statute concerning copyright in either France or the United States. Still, Jefferson sought to handle the matter, as best he could. This is what he did:

1. Jefferson arranged, presumably by contract, for the manuscript to be printed by Mr Pierres (I would love to see the terms of that agreement).

2. Jefferson tried to control the quantity of the print run and the manner of distribution. That might have enjoyed some success but, since publication took place in France, a translation into French could be done readily and it would completely derail any attempt by Jefferson in this regard.

3. The notion of a translation as a protected derivative work was for the next century to sort out. In the absence of this right, Jefferson sought to gain the upper hand by cooperating in the translation, the provenance of which would hopefully render it the authoritative version. But translation was and remains a tricky matter, with the result that the translation of the Notes did more harm than good.

4. This meant that Jefferson had to abandon his original goal of a limited number of copies intended for a small number of readers in favour of managing public distribution with a presumably reliable publisher in both England and the U.S.

5. Issues of attribution and distortion were first and foremost, in the cradle of moral rights protection no less, but before any statute was in place so that an author could enjoy such protection. The best Jefferson could do was to seek to arrange that authorized versions be published in England (Statute of Anne territory) and the U.S. (after Constiutional recognition of copyright was conferred in 1787, but before the first copyright legislation was enacted in 1790).
What comes through in this story is how so many of the basic issues of copyright -- publication, control of distribution, the right to create a derivative work, and issues of moral rights -- were already present at the dawn of the modern copyright system. Jefferson did as well as he could under such circumstances, which were at once so different yet so similar to those of our own contemporary copyright times.

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