The development of Canadian literature and the Anglo-US copyright wars of the 19th century

Kat friend Hugh Stephens recounts the oft-overlooked Anglo-US copyright wars of the 19th century and how it may have impeded the development of Canadian literature.

Canadian writers are certainly well- known internationally, ranging from Nobel Prize winner Alice Munro to two-time Booker Prize winner Margaret Atwood and Booker winners Michael Ondaatje and Yann Martel. Although Canadian publishing houses are facing the same financial and business challenges as publishers elsewhere--especially during COVID-19, it can be said that Canadian literature is alive and well. But this was not always the case. The question is--“why”?

As an emerging country living in the shadow of its former imperial master, Britain and its much larger republican neighbour to the south, the United States, 19th century Canada faced nation-building challenges, including developing its own culture and literature. Among these challenges was the development of a viable printing and publishing industry without which, it can be argued, it is difficult for an indigenous literature to blossom and thrive.

It is well known that back in the mid to late 19th century, the US printing industry thrived by publishing pirated British works, given the popularity at the time in the American market of British authors such as Charles Dickens. Prior to the negotiation of the Berne Convention in 1886, and the passage of the International Copyright Act (Chace Act) of 1891 in the United States (see below), copyright protection was afforded only to works published domestically by nationals and residents of the publishing country.

Thus, prior to 1891, it was perfectly legal for US publishing houses to reprint British works without authorization for sale within the United States. British publishers accorded US writers such as Edgar Allen Poe the same treatment.

Canada, then a part of the British Empire, yet living cheek-by-jowl with the emerging economic colossus of the United States, was subject to imperial copyright, so British authors could not be pirated and unauthorized editions of their works could not legally be sold in Canada. However, because British editions were expensive and had to be shipped by sea to Canada, Canadian booksellers quickly twigged to the opportunity of importing into Canada the pirated US versions of British works at a much-reduced cost.

While the import of cheaper US editions pleased Canadian booksellers (and no doubt the reading public), it did little for Canadian printers and publishers. Being a small market, they found it difficult to negotiate the Canadian rights for British works. While British publishers and authors objected to “American piracy”, in the end they worked out a compromise, selling advance rights (known as “courtesy of the market”) to designated US publishers, who would then launch their pirated editions on the American market ahead of their domestic rivals.

Even though not legally protected by US copyright laws, British publishers often sold these advance-publication rights to US publishers on a North American basis, thus completely bypassing any prospective Canadian publishers.

Since they could not pirate British editions as their US competitors did, Canadian printers specialized in pirating US authors. The most famous Canadian “pirates” were the Belford brothers of Toronto, who famously published an unauthorized edition of Mark Twain’s classic, The Adventures of Tom Sawyer.

Twain had the book published first in London in order to secure imperial copyright, but before the US edition could come out, but the Belford brothers did an unauthorized reprinting and flooded the US market with cheap mail-order copies. Twain (Samuel Clemens) was incensed at what he called the “Canadian thieves”, and commented; “I can’t trust any more Canadians after my late experience. I suppose they are all born pirates.”

Finally, in 1886 the Berne Convention was signed by the original ten signatories (Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the British Empire, which included Canada). Note that the United States did not sign and in fact, it was not until 103 years later, in 1989, that the US joined the Berne Convention.

The immediate impact of the Berne Convention was to provide reciprocal copyright protection for the first time, although it was limited to the signatory countries. This development propelled Britain and the United States to begin negotiation of a bilateral copyright treaty, which finally came into force in the US with the passage of the International Copyright Act (widely known as the Chace Act) in 1891.

This act provided for copyright protection of British (including Canadian) works in the US, but with a stipulation. 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. This further squeezed Canadian printers, who could now no longer print pirated editions of US works, and found it difficult to obtain licences to print British works for the Canadian market (British publishers preferring to sell the North American rights to US publishers at the latter’s request).

It was a classic Catch-22 for Canadian publishers who found themselves squeezed. Not surprisingly, for years Canadian publishing was dominated by subsidiaries of British and US publishers.

In a supreme irony, since Canada was a member of the Berne Convention while, until 1989, the US was not, in the 20th century many US works were first published in Canada through a US subsidiary in order for the work to gain Berne Convention protection. This became known as the “back door to Berne".

And so the question: did the lack of a truly domestic publishing industry in Canada hold back the development of Canadian literature? Many factors have been identified as being responsible for the artistic explosion of Canadian writing from the 1960s on, among them the growth of a Canadian consciousness and national feeling. But was the “late blooming” of Canadian literature due to the squeeze put on nascent Canadian publishers while Canada was still a semi-colony? It is a popular academic theory.

Still, as this blogger has argued elsewhere, (here), whether or not the copyright wars of the 19th century were responsible, at least in part, for holding back the development of Canadian literature is not cut and dried. Still, there is no doubt that Canada’s semi-colonial status and unique geographic position in North America held back the development of Canadian publishing for many years.

Picture on top right is by Pmx who has donated it to the public domain.

Picture on the left is in the public domain.

Picture on the lower right is by Andrew Dunn and is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.