This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!
“This copyright bill is the doing as we would be done by.” — Walt Whitman, 1891—
Upon passage of the international copyright law just about a year before his death, Walt Whitman’s comment (quoted in Part I) included this refrain of the Golden Rule, about which scholar Martin Buinicki, in his 2003 paper writes the following: “The somewhat grumpy pragmatism evident in Whitman’s ‘do unto others’ defense of his views is offset by the revelation that the international copyright law was more than a business matter for Whitman; it was ‘a question of honesty—of morals—of a literature, in fact.’”
Despite America’s eventual leadership as a mass producer and exporter of creative works by the mid-20th century, the U.S. was remarkably slow to adopt international copyright agreements in contrast to European and other major trading partners. Walt Whitman’s career coincided almost exactly with the roughly fifty-year interval between early debate on international copyright and ultimate ratification of the law; and in the same spirit in which Whitman answered Emerson’s call for a new—and intrinsically American—voice, he devoted his voice to the cause of copyright as in one editorial, written in 1846 for the Brooklyn Evening Star, which states …
“The writers of America are more miserably paid than their class are in any other part of the world. And this will continue to be the case so long as we have no international copyright. At this time there is hardly any encouragement at all for the literary profession in the way of book-writing. Most of our authors are frittering away their brains for an occasional five dollar bill from the magazine publishers.”
For roughly a half century, while America’s trading partners adopted various international copyright agreements, the U.S. Congress remained persuaded by the independent publishers—this included printers, typefounders, bookbinders, et al—who argued that adoption of international copyright would result in large, eastern firms gaining monopoly control by virtue of their being the only entities with the resources and relationships necessary to obtain licenses for foreign manuscripts.
Thus, Buinicki sees as relevant Whitman’s dual role as both author and “defender of the artisan class.” “Just as [Whitman] felt that American democracy could foster native authors even as it provided fair treatment for foreign authors, his publishing practices collapsed the kind of printer- author-publisher oppositions that remained at the center of the monopoly dispute,” writes Buinicki. This refers to the fact that, as a staunch advocate of international copyright, Whitman also remained close to the independent printing industry, in which he had apprenticed years before becoming the author and poet we know today.
When he self-published Leaves of Grass in 1855, Whitman employed a small, independent firm and even helped set type for the first edition. DIY in both spirit and practice long before that acronym existed, the views of America’s preeminent, democratic poet would offer little support to today’s digital-age pundits, who like to contrast—rather than correlate—the interests of independent artists with the purpose of copyright.
As Buinicki observes in his paper, Whitman’s advocacy of copyright was much broader than his own—or any other author’s—proximate financial needs; it envisioned a mature and holistic culture in which America should not merely strive for a place among the global anthology of creative works, but would be uniquely poised to lead in the production of culture. He was one of many authors and artists (and not all of these were American), who believed instinctively that the brash, American experiment in republicanism—codifying the freedoms of speech, religion, and the press—implied an unprecedented opportunity for creative expression in Western culture.
It cannot be overstated that when Whitman began his career, the United States was still a stumbling, backwater nation in more ways than one. The Revolution generation was just dying off, and the next wave, with a median age under 18, were just beginning to imagine how the principles enshrined in the Constitution might actually apply to people other than privileged, white men. Against this backdrop, Buinicki places Whitman as a critic of America’s timidity in plodding toward adoption of international copyright, suggesting an unwillingness to compete with the more developed nations of the world. Picking up on Whitman’s sentiments, Buinicki writes …
“The American bard does not thrive by squelching competition but by meeting it openly and generously. Monopoly, on the other hand, suggests selfishness, and its true evil is that, since it is paired with secrecy, it precludes fair and open participation, even if that participation comes in the form of market competition.”
Citing clear examples in both Whitman’s poetry and his correspondences with various publishers, Buinicki demonstrates how the author recognized that the true threat of monopoly lay in the capacity of the predatory entity to act in secret—to exploit without permission. What mattered to Whitman—as it matters to nearly all creators today—was to be asked, and not exclusively for the purpose of payment.
For Whitman, who articulated, and insisted upon, a metaphysical connection linking himself, his work, and his readers, copyright was an extension of that nexus rather than a barrier to it. While the modern copyright skeptic seeks to limit originality in the author by over-emphasizing the commons of creative consciousness, Whitman synthesized these forces in his poetry and his copyright advocacy. “Whitman exploited all means available, including the legal means offered through copyright, to make each copy of the book embody the personal exchange he called for in his poetry,” Buinicki writes.
The passage of the international copyright law did not result in publishing monopolies, a reduction in authorship, or outsized costs to consumers. To the contrary, by ending the piratical American trade in foreign manuscripts, international copyright law had the predicted effect of stimulating investment in American authors, thus opening the door to the US not only out-producing most countries in creative authorship, but also to making creative work one of the nation’s most lucrative and most salutary exports. Hence, Buinicki’s conclusion says it best …
“Whitman’s support for the passage of an international copyright law in the US … was more than a matter of simply protecting his business interests: it was inextricably linked to his idea of an equal, open, and connected democracy.”
David Newhoff writes the blog The Illusion of More and is currently writing a book on American copyright history.
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