Literature and International Copyright after the Berne Convention (1886)
Summary and Keywords
The gradual development of national copyright laws during the 18th and 19th centuries resulted in quite different and culture-specific understandings of the nature and scope of protection provided for literary and artistic works. The lack of international standards of regulation meant that literary works could be freely reprinted, translated, and appropriated abroad. As a result of the increasing internationalization of literature, bestselling authors of the 19th century began to call for a universal copyright. Their activism proved an important catalyst of the first international copyright treaty, the Berne Convention, signed in 1886 by ten nations.
The Berne Convention has since been revised many times and is currently ratified by over 170 signatories. In its current form, it grants relatively strong rights to authors who produce works that can be categorized as “originals.” It determines the minimum standards of protection which bind the national legislation of its member states, for instance by setting the minimum length of copyright protection at fifty years from the death of the author. The development of international copyright agreements since the latter half of the 20th century has resulted in a network of mutually reinforcing treaties and an increased awareness and control of copyrights on a global scale. At the same time, such treaties and the national laws they govern can offer only partial solutions to the multiple conflicts of interest relating to the uses of literary works beyond their countries of origin.
The main concerns of the 19th-century authors who lobbied for universal copyright are still relevant today, albeit in somewhat different forms. With the advances of technology that allow for effortless storing and distribution of works in digital form, and given the economic gap between content-producing industrialized countries and the less-developed countries that use that content, book piracy still exists and is often a symptom of a dysfunctional or exclusive local market environment. In addition to the abolition of piracy, another core concern for the Berne Convention was the regulation of translation rights. The treaty divides the copyright in translated works between authors of originals and translators, which challenges the notion of originality as the criterion for protection since translations are by necessity derivative. The division of authors into two groups meriting different types of protection is further complicated by the rise of the so-called “born-translated literature” which effectively blurs the distinction between originals and translations. The international framework of copyright has harmonized many aspects of copyright, yet left others unregulated: appropriations, such as parody, have proven problematic in an international setting due to differences in how national laws justify the existence of derivative and transformative works.
International copyright thus remains an oxymoron: it is promulgated in and through national laws, and the disputes are settled in national courts although literature, especially translated literature, has multiple countries of origin and is increasingly distributed by international booksellers to a potentially global audience.
The 19th century marked a period of rapid internationalization of literature. The advent of mass literacy, expansion of book production and improved communications facilitated the efficient distribution of books beyond their cultures of origin. The phenomenon of the international bestseller was born: popular novels were translated without delay, and writers like Sir Walter Scott, George Sand, and Victor Hugo had a wide readership abroad, eager to get their hands on the latest volume of their favorite author. The expanding book market also yielded easy profits for pragmatic publishers: translation costs were small and publishers could fill their lists with both interesting and low-cost foreign books. In the early decades of the 19th century, only ten percent of novels published in German were of non-German origin, but by midcentury, half of the novels published in the German language were translations.1
While readers and some publishers benefited from the rich variety of titles and editions, authors were less happy with the situation: in most cases they could not control the translation and distribution of their books abroad and consequently gained little or no income from their international success. Even in their own countries, they might suffer from the activities of pirate publishers who printed cheaper, unauthorized editions of their titles. Although the copyright laws in many European countries prohibited piracy, the book industry was powerless in the face of exported pirate editions. Piracy was especially common in areas where linguistic and national borders are not co-extensive: France and Belgium, Sweden and the Grand Duchy of Finland, as well as the different states in the areas of modern Germany and Italy provided single-language markets for bootleg editions and book smuggling. The wealth of many still existing US publishing houses was founded on the unauthorized printing of British bestsellers.2
The lack of regulation in the international book market prompted increasing criticism from authors and their original publishers. The popular British novelist and historian G. P. R. James described the efficiency and scope of piracy in 1843 as follows: “[W]ithin three days, or four at the most, after a popular English work has reached Paris, it is reprinted verbatim and sold at once at one-sixth of the English price. Two other editions are printed in Germany, sometimes three; an edition in Belgium; and innumerable editions in America.”3 Contemporary customs regulations forbade the import of pirated editions, but smuggling was widespread, and as importing pirated editions for private use was not sanctioned, the domestic book market was consequently inundated with unauthorized copies. James called for stringent measures to counteract piracy: “Nothing, in short, but absolute and total prohibition will ever have the effect of diminishing, in any important degree, the introduction of [pirated editions] into Great Britain itself, or will enable the custom-house officers of our colonies to stop the unlimited influx of these pirated copies which has at the present totally annihilated the trade in genuine editions.”4 James was proposing stricter controls on a national level; in 1843, the establishment of effective international copyright restrictions still seemed like a utopian project.
Yet just a few years later, European nations began to regulate the international book trade through bilateral copyright treatises which offered reciprocal protection for the citizens of the signatory nations. Britain entered into mutual copyright treaties with Prussia, Hamburg, France, Belgium, and Spain between 1846 and 1885, while France negotiated a total of thirteen bilateral copyright treatises by 1886.5
A system of international copyright based on bilateral treaties was however both cumbersome and inefficient in preventing unauthorized copies and translations from flooding the market. The network of such treaties nevertheless clearly indicated a need for more exhaustive international cooperation in the field of copyright. In the latter half of the 19th century, internationally successful authors took a leading role in this endeavor. They began to formulate an idea of universal copyright, resting upon a notion of literary works as natural property belonging to their makers.
An important initiator in this movement was Victor Hugo, one of the leading public figures among European authors of the 19th century. His keynote speech at the International Literary Congress held in conjunction with the Universal Exposition of Paris in 1878 was an emphatic but inherently contradictory plea for the recognition of authors’ rights as a part of the more general progress of peace and civilization. He maintained that literary property is open to everyone, but insisted on the ownership of works by their writers, and stressed the universality of literature while emphasizing the role of great writers as national treasures. His speech thus evoked the two main points of contestation that continue to impede negotiations on international copyright law: the difficulty of striking a balance between public interest and private property, as well as the need to find an accommodation between national interests and the ideal of universal rights.6
The most direct and substantial consequence of the 1878 congress was the founding of an international writers’ association, later renamed as Association littéraire et artistique internationale (ALAI) when its membership was expanded to include artists. The first and most urgent of the objectives of the association was the protection of the principles of literary property through a multilateral copyright treaty that would recognize and enhance the role of authors as leaders of the modern age. At the initiation of the association, acting under the patronage of Victor Hugo, an international conference was held in Berne in 1883, preparing for the creation of an international union for the protection of literary property. The conference issued a draft of ten articles that were modified in subsequent meetings, culminating in the signing of the first international copyright treaty, known as the Berne Convention, in 1886.7 From its beginning, international copyright was a Eurocentric project, and Western countries have continued to dominate the international negotiations on the role and scope of copyright.
Through the 1886 act and its subsequent revisions between 1896 and 1971, the Berne Convention has codified three basic principles for the international protection of works and the rights of their authors in the signatory countries: the principle of national treatment, meaning that member states must grant foreign authors the same rights as their own citizens; the principle of absence of formalities, meaning that no registration is required to qualify for protection; and the principle of independence of protection, meaning that a work is protected regardless of whether such protection is provided in its country of origin. Moreover, the convention has also established the minimum standards for copyright protection that each member of the Berne Union must implement in their national laws. These standards have been gradually added to and extended. The 1886 treaty made no provisions for harmonizing the duration of protection and the only exclusive right provided was that of the right of translation, limited to ten years from the publication of the work. The current version of the Berne Convention sets the minimum term of copyright protection at fifty years from the death of the author and grants “original” authors the rights of reproduction, translation, and adaptation as well as rights to broadcasting, recording, and public performances of their works for the full duration of the copyright. In order to balance these exclusive authorial rights, the Berne Convention also permits certain restricted uses of copyrighted works, such as citation and use of works for teaching purposes.8
A major challenge for the Berne Convention has always been to find an accommodation between quite different legal cultures; the civil law tradition of the countries of continental Europe and many of their former colonies, which focuses on the rights of authors, and the common law tradition of the Anglo-American countries which emphasizes the functionality of the market and the importance of the public good. Consequently one of the controversial aspects of the Berne Convention has been the protection of moral rights in article 6bis which was added in the Rome revision of 1928. The moral rights include the right to claim authorship of the work and the right to object to the mutilation or other such derogative uses of the work which would harm the author’s honour or reputation. When the Berne convention was assimilated to the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights, 1994) in its entirety, the sole exception was the moral rights article. As the moral rights remain with the author (or his or her representatives) and are not automatically transferable with economic rights, they might conflict with the interests of the holders of economic rights of works.
As is seen from this rough outline, the Berne Convention aims to provide a uniform framework for the national copyright laws of the signatory nations which had historically developed in response to particular national demands. The Convention did not replace those laws and in fact it included no stipulations regarding interventions in case of violations against its principles. Moreover, signatory countries could opt out from some of its articles, making the uniformity of the whole copyright union rather questionable. Yet it was perhaps just this flexibility, combined with the idealistic purpose of protecting the progress of civilization, propagated by Hugo in his inaugural speech, which made joining the treaty so attractive.
Since its inauguration, the Berne Convention has become the most exhaustive of international copyright agreements, with 174 signatories as of 2017.9 What sets it apart from the subsequent major international intellectual property treaties, such as the UCC (Universal Copyright Convention, 1952), TRIPS (1994) and WCT (WIPO Copyright Treaty, 1996), is its symbolic and historical relevance for literature and art as a special type of intellectual property. Unlike the relatively recent TRIPS and WCT, which witnessed the expansion of the scope and shift of emphasis of intellectual property rights to new forms of content and new technologies of reproduction with the aim of abolishing hindrances to effective global trade, the Berne convention, as its first article states, aims to protect “the rights of authors in their literary and artistic works.”
Given the number of its signatories, the significant revisions which have expanded the treaty far beyond its modest origins, and the considerable lapse of time since its last revision in 1971, one might conclude that the Berne Convention has amply fulfilled the dreams of the 19th-century authors advocating for universal protection of literary property. However, the process toward an international copyright union was for decades hampered by the absence of certain major countries. The United States joined the Berne Union only in 1989, and its absence influenced that of much of Latin America; the Russian Empire never signed the treaty, and when the Soviet Union finally decided to ratify it in 1989, the regime collapsed. The Russian Federation acceded to Berne in 1994, China in 1992. The conflicts between copyright-owning developed nations and the newly independent colonies with an interest in using copyrighted materials almost threatened to undo the Union in the middle of the 20th century, before the former agreed to concessions (albeit minor and ineffective ones) following the tumultuous Stockholm congress of the Union in 1967. The survival of the Convention and its inclusion in the subsequent copyright treatises was not a straightforward process, but has been halted and compromised many times.10
The Berne Convention granted relatively strong rights to authors who produce (and are able to produce) works that can be categorized as originals.11 It sets minimum standards of protection which bind the legislation of its member states, but with no corresponding maximum limits, so that member states are free to extend those limits as they wish.12 The strong protection of authors has in practice often been transferred to benefit publishers which, as businesses, have better opportunities for overseeing the use of copyrighted materials. The development of international copyright agreements, resulting in a network of mutually reinforcing treaties, has further increased awareness and control of copyrights. At the same time, laws can offer only partial solutions to the multiple conflicts of interest relating to the creation and use of literary works.13
High on the agenda of the 19th-century authors lobbying for universal copyright were three issues: piracy, translation, and appropriation. They have remained acute points of contestation in the passing and enforcement of international copyright legislation, as each of them involves a difficult balancing act between the interests of different actors, ranging from individuals to nation states. The gradation from full reproduction (in cases of piracy) to partial reproduction or modification (in cases of appropriation) is reflected in the extent of protection offered by the law: the right of reproduction is defined as an exclusive right, whereas there are types of transformative uses that are exempt from the copyright control of the right-holders of original works. However, the variety of literary works and practices persistently challenges the foundations of copyright protection and its exemptions.
Piracy: From Rogue Publishers to Illegal Archives of Knowledge
Piracy was not only one of the main concerns for the activists of ALAI, but a pertinent point of conflict between private ownership and free access which, according to the historian of piracy Adrian Johns, underlies and shapes virtually all the central principles of intellectual property laws.14 In the book market, piracy is usually taken to consist of unauthorized printing and distributing of books, but the term has been extended to other unauthorized uses as well, such as unauthorized sequels or plagiarism. However, the illegal production of new copies which are identical (or almost identical) to the original raises slightly different questions about authorial control and identity of a work than its transformative uses.
Contemporary discussions on piracy often feature the image of the pirate as a criminal depriving rightsholders of their profits and livelihood and thereby impoverishing culture. Yet in historical perspective, many forms of piracy were not offenses of law, but merely practices that fell outside regulation. Printing and selling of unauthorized copies or translations of foreign books was part of the normal usage of works in many countries for a considerable time. In the absence of legal restrictions, piracy was objected to—if it was objected to—either as unfair competition or as a moral offense against the author of the appropriated work. The long ratification process of the Berne Convention meant that authors from the Berne Union countries had to resort to raising awareness and launching international campaigns to secure their rights in non-Berne countries, as for instance James Joyce did in the 1920s when his novel Ulysses was illegally published in the United States.15
While piracy was and still is sometimes seen as a conflict between individual authors and rogue publishers, the changing power relations in copyright matters have increasingly set users in the role of the pirate who is depriving publishers of their profit.16 Advances in technology, beginning from the invention of the photocopier in the middle of the 20th century and leading to personal computers, digital printing, and peer-to-peer networks have made reproducing and copying of literary works, as well as other kinds of contents, effortless and swift. At the same time, the conglomeratization of the publishing industry and media has concentrated the ownership and control of copyrighted content in businesses that are eager and able to prevent any unauthorized use and reproduction of their intellectual properties.
In music, film, and television, technological advances have led to the growth of a substantial pirate industry and equally aggressive countermeasures from content owners, targeting pirate publishers and distributors as well as users of illegitimate content. In literature, the photocopier remained the main technology of user reprinting until the beginning of the 21st century, when the emergence of digital formats revolutionized the production and distribution of books. Contrary to many fears, digitalization of literature has not led to mass piracy. The fact that books need to be translated into multiple languages before they can become worldwide bestsellers attests to how books as cultural products are more localized than, for instance, music. A pirated music file can be enjoyed anywhere, which can cause substantial financial damage to its makers, whereas it is rare for a book to be pirated in many or all of its different translated editions. The possibilities as well as potential damages of piracy are thus of less consequence in literature than in music. In many Western societies, the organization of the book market, as well as the easy availability and relatively low prices of books, do not favor piratical activities.
However, piracy plays a completely different role in developing and newly industrialized countries, where the local cultural economy is largely based on practices that do not coincide with the Western conceptions of copyright represented by the Berne Union.17 In a country like China, where the state restricts publishing and the book market, large-scale piracy answers to the buyers’ demand for cheaper and more easily accessible popular titles as well as enabling the circulation of forbidden books. China ratified the Berne convention in 1992, and although the amount of translated literature plunged in the following years due to the repression of pirate translation, in China the book market functions on such a different basis from the principles codified in the Berne Convention that their efficient assimilation into domestic copyright practices has not yet taken place.18
Another important book culture with long traditions in alternative publishing is Russia. During the Soviet period, the practice of underground samizdat publication ensured the circulation of works that could not otherwise enter the market. Knowledge of unauthorized publishing techniques took a new direction with the rise of digitalization. Russia hosts extensive digital collections of books and articles in a variety of languages available for downloading for free, reflecting a rebellion against copyright restrictions as a new form of state-endorsed censorship. These shadow libraries, as their name suggests, operate discreetly and often require special effort to access, so they retain a frisson of participation in a secret community, reminiscent of the collective samizdat publishing of the Soviet era.19
“Literary property is open to everyone,” declared Victor Hugo in his 1878 address, ”[l]et us insist on literary property while at the same time fostering the public domain.”20 How to accomplish this remains an acute question even in the 21st century, enforced by the digitalization of literature. Ever-extending copyrights have served the purpose of protecting literary property relatively well, but they have not fostered the public domain in equal measure. Even though in Western countries the reading public largely enjoys easy access to literary works through the book market, users face antipiracy restrictions when using their legal copies of digital books, and libraries have to restrict their lending activities in the digital environment. In non-Western societies piracy might still be the only viable means for distributing literature and knowledge, regardless of the restrictions imposed through the Berne Convention.
Translation and the Problem of Original Expression
Stopping widespread international piracy was one of the chief aims of the ALAI activists and closely linked to it was the question of translation and translation rights. For some 19th-century authors, translation was just another form of piracy, as there was no obligation for publishers to ask for permissions or pay royalties to foreign authors. The term “translation” was not restricted to translations from one language to another, but could encompass all reproduction or be used as a synonym for adaptations to other media.21 The emergence and revisions of the Berne convention gradually introduced a system of categories, whereby translations are seen as a particular type of derivative work (thus distinct both from original works and reproductions). Translations remain a central issue for international copyright of literature, as literary authors are particularly dependent on the skills of their translators and foreign publishers in enabling the international distribution and success of their works.
The Berne convention initially granted original authors, or authors of works eligible for copyright protection, the exclusive translation right for a period of ten years from the publication of the work, but this right was extended in the 1896 revision to last for the full copyright term of the original work. Copyright protection was extended to translated works already in 1886, and in the 1928 revision the paragraph was modified to its present form: “Translations [. . .] shall be protected as original works without prejudice to the copyright in the original work” (article 2 § 3).
The reiteration in the paragraph of the term “original” indicates that the Berne Convention—and copyright laws in general—are based on dual standards of protection. Translations are by nature derivative, as they require the existence of a prior text to be translated, yet to merit protection by law, they must be classified as originals while at the same time separated from the primary type of originality reserved to nonderivative works which enjoy more extensive protection.
By assigning translations only a secondary status, the law suggests that the originality of translations emanates from the primary text: it is the originality of the translated author that animates the translated text. Many practices of the literary world underline this secondary status: the translator’s name is usually mentioned only in the title leaf, not on the cover of the book, and translators’ role and rights are seldom the focus of attention in the publicity surrounding international bestsellers. For instance, when the international press discovered in 2008 that the bestselling Brazilian author Paulo Coelho had pirated his own works in many languages in order to boost the sales of legitimate copies, the legitimacy of his actions was not challenged, and it remained unclear whether his translators and foreign publishers, the agents of his international success, endorsed this unorthodox marketing strategy.22
Yet there are reasons to take translations to be original in themselves. If the originality of a work resides in its expression, as most copyright law commentaries maintain, translations arguably possess originality to a degree. Linguistic and cultural differences inevitably produce variation in expression and, moreover, two translations of the same work by different translators are usually quite distinct in their diction. Thus translations challenge not only the original vs. derivation divide, but also another fundamental distinction on which copyright laws are based—namely that between ideas and expressions. Only the latter merit protection in copyright laws. But if the expressions of a translation result from the creative effort of the translator, what is the role assigned to the original? The 1978 WIPO Guide to the Berne Convention defined translations as works that express another’s thoughts in a different language, which seems to shift original works into the category of nonprotectable ideas.23 The ontology of translation thus presents a serious challenge to the rationale of the criteria for copyright protection.
Given both the effort invested in translating and the creativity required, the subordination of translators’ copyright to that of the original authors has raised objections. In his 1995 article “Translation, Authorship, Copyright,” translation studies scholar and translator Lawrence Venuti argued that the current distribution of rights and profits discourages translators from investing in translation projects. Thus the ultimate aim of copyright law to foster and reward creativity does not apply to this particular group of authors.24 Furthermore, by granting original authors with moral rights, such as the right of integrity prohibiting the unauthorized alteration of a work, the copyright laws allow authors full control over the translator’s creative work: “[L]egal protection against distortions endows authors with enormous power over every aspect of the translating process, permitting them to develop their own idea of what constitutes the integrity of their work in a foreign language.”25
Extending the rights of authors over those of translators reveals, in Venuti’s view, how the legal conception of authorship detaches authors from their works and assigns originality to an immaterial essence of individuality that has the power to manifest itself in different forms and verbalizations. Such a notion effectively disguises the cultural, plural origins of literary works. Translation as a mode of authorship offers a more balanced view of the origins of literary creativity: translations are based on existing works and benefit from domestic cultural materials that enable the communication of the work to a new audience, but they are also orchestrated by a single individual, the translator. According to Venuti, the combination of collective and individualistic elements in translation could provide a more realistic and equitable model of authorship as the basis for distribution of rights and profits among authors of different types of works.26
Venuti’s suggestions illustrate a typical position in copyright critique: the interests of one particular group are allowed to dominate and the suggested modifications involve the curtailing of the rights of other interest groups without consideration of the overall effects of such modifications. Venuti proposes that the original author’s right of translation ought to be reduced to a mere five years from publication, and that the first translator would have an exclusive translation right to the work for the full term of the copyright.27 Thus only popular authors whose works are translated without delay could profit financially from the international success of their works, and once a work has been translated, the market would remain closed for retranslations. Venuti’s suggestions would thus in practice increase, not reduce, the inequality between different groups of authors, as well as diminish cultural variety instead of fostering it.
While Venuti’s criticism focuses on the conflict of interest between authors and translators, it also relates to another major copyright contention arising in conjunction with translation, namely the conflict of interest between exporting and importing nations that was apparent in the negotiations toward the Berne Convention and that has continued to shape its further revisions. Countries with strong and internationally attractive book production, such as France, were eager to protect the rights of their authors abroad while countries like the United States or the Scandinavian countries with their modest domestic book production and strong demand for translations were unwilling to grant translation rights and pay royalties to foreign authors, as that would have had detrimental effects on domestic publishers’ business and cultural diversity. The conflict between exporters and importers of literature was reactivated following the independence of many former colonies of European nations in the middle of the 20th century. Striving to catch up with the knowledge and technological advances of the more developed countries, they found translation restrictions unfair and burdening and threatened to leave or remain outside the Berne Union unless the developed countries agreed to concessions.28 Venuti does not evoke these discussions, but siding with the translators makes him a strong advocate of the importers’ position, which seeks to curtail the rights of the producers of intellectual property.
The imbalance between importing and exporting literary cultures and the secondary status of translators in contrast to authors has for a long time shaped the discussion on the copyrights of translations, but these categories are gradually losing their ground as publishing policies and technologies change. An increasing number of contemporary authors are targeting an international or even global audience and their works appear simultaneously in many languages. According to Rebecca L. Walkowitz, such “born-translated” literature “approaches translation as medium and origin rather than as afterthought. Translation is not secondary or incidental to these works. It is the condition of their production.”29 Authors such as Orhan Pamuk, Elena Botchorichvili, or Haruki Murakami are not only widely translated but use translation as a method and theme in their novels in ways which challenge the conceptions of individual originality and national origin on which the copyright system is constructed. There no longer exists a single original work, but multiple versions tailored for different audiences and produced more or less simultaneously. Some authors have chosen to write in a language other than their native tongue or translate their works by themselves, which further blurs the distinction between authorial originality and translatorial derivation.
While the born-translated literature highlights translation “as a spur to literary innovation”30 and the global success of prominent authors is subject to the creative input of translators working as coauthors, at the other end of the scale the translator as a creative individual disappears from the equation altogether: bookstores all around the world are selling works of fiction translated by machine translation services, such as Google Translate, launched in 2006. Relying on the collective work of human translators, Google Translate scans massive amounts of texts in translation in order to find the statistically most adequate matches for the phrases to be translated. While the results of machine translation in literary texts are currently awkward at best and illegible in most cases, this has not prevented small-scale publishers from producing impressive catalogues of translated works, mostly classics, in a variety of languages. If the translated work has entered the public domain, there are usually no legal restrictions against such appropriations, and the damages from buying illegible editions are settled between buyers and bookshops. Yet the increasing use of machine translation even in professional translation processes means that the question of authorship and originality of translation needs to be reevaluated in general, and also in terms of law in particular.31 Furthermore, the rise of machine translation challenges the requirement for the flesh-and-blood author that exists in the Continental European civil law tradition but not in the Anglo-American copyright culture.
Existing at the forefront of the globalization and digitalization of literature, translation is now ubiquitous. As the means and foundation for the existence of international literature—or world literature—it is a pertinent reminder of the collective sources of authorship. Following the rationale of the Berne Convention, national copyright laws treat translations as derivative works, thereby bracketing the originality of expression required in rendering a literary work accessible to new audiences. Therefore the laws continue to contribute to the relatively low cultural value and remuneration for translation.
The Plurality of Transformations
While the Berne Convention has effectively harmonized legislation concerning translation rights, it has had less direct impact on how national laws classify and regulate other kinds of derivative works. In legal terms, a derivative work is a work based upon a preexisting work, as is the case with transformations and adaptations. In comparison to translation, other types of derivative works have only gradually been recognized in the Berne Convention and it hasn’t been clear who owns the rights of works based on existing copyright-protected materials.
For instance, while copyright protection was extended to adaptations and “other reproductions in an altered form” in the Berlin revision of 1908, only in the Brussels revision of 1948 was the right of adaptation explicitly reserved to authors of original works. The difficulty of negotiating between the rights of original authors and the rights of other authors benefiting from preexisting materials is evident in article 9 of the Berne Convention, where the first paragraph grants authors exclusive rights to reproduction in any manner or form, while the second paragraph allows member states to limit that right within certain parameters. The second paragraph was added to the Stockholm revision of 1967, and has subsequently become known as the “three-step test.” It suggests that reproductions of works or their parts can be allowed “ in certain special cases  provided that such reproduction does not conflict with a normal exploitation of the work and  does not unreasonably prejudice the legitimate interests of the author” (article 9 § 2). While it was intended as guidance to national legislation in the matter of right of reproduction, it has since become a general principle for evaluating the criteria for exemptions from copyright protection both in legislation and in legal practice.32
The fact that the three-step test of article 9 § 2 is presented not as a mandatory statute but as an option for the union members reflects the plurality of approaches to transformations found in national copyright laws. National laws have traditionally represented a certain degree of tolerance toward transformative works in recognition of their enriching function in culture and society.33 Transformations can function as cultural criticism and commentary, and they seldom cause any direct damage to the works which they appropriate, as they might target completely different audiences and markets.
The absence of more detailed international or national regulation means that the terms of free use are largely based on precedents. Some countries with well-developed legal histories have a tradition of case law to draw on, but especially in smaller countries the limits of appropriation can be unclear as there are not enough court cases to build a consistent interpretation on the limits of reproducing or imitating existing works. Moreover, controversies over literary ownership tend to be financially so insignificant that they fall outside legal interest, and such disputes are more readily treated as breaches of moral or professional codes of conduct, subject to negotiation within the literature institution.
Since imitation and transformation have been the basic methods of creation across literary history, the literature institution has developed its own mechanisms governing the limits of acceptable use. Traditional methods of dealing with unfair appropriation in literature have been public exposure and outdoing: when Alonso Fernández de Avellaneda in 1614 published a sequel to Don Quixote (1605), Cervantes hastened to compose his own version of the knight’s further adventures where he pokes fun at the expense of the opportunistic de Avellaneda.34 While Cervantes’ rhetoric betrays that he clearly felt that de Avellaneda had unfairly appropriated his work, appropriations and adaptations can be and have often been interpreted as homages which increase the fame of the originals rather than detract their value or the original author’s profits. The idea that authors could restrict or even prohibit the appropriative uses of their works through copyright protection has only gradually seeped into the practices of the literature institution, and there is still great variety in how these rights are recognized and protected in different legal and cultural contexts.
The plurality of attitudes toward derivative works is exemplified in the case of parody, which has in recent years attracted increasing attention in legal discourse. Parody is of course as old as literature itself, and has in most societies been tolerated as a mode of criticism or humor.35 One of the earliest legal cultures to acknowledge the right to create parodies was France: in 1957, it incorporated in its national law a paragraph that prohibits original authors from preventing the creation of parodies based on their published works.36 Other European laws that do not recognize a similar exemption have nevertheless in practice also justified parody by relating it to exceptions to copyright protection. The Nordic countries, for instance, have allowed parodies if they differ significantly enough from the originals to merit being classified as new, independent works.37 Such an interpretation, however, leads to obvious difficulties, as parodies are imitations that depend on a recognizable similarity with an earlier text or discourse. Parodies thus activate the problematic distinction between originals and derivative works from a slightly different angle than translations, which are usually more explicitly bound to their originals.
The EU Information Society Directive of 2001, which aimed to harmonize copyright exemptions within the EU member states, lists a number of specific uses and categories as permissible, among them parody. Yet, as with article 9 § 2 of the Berne Convention, the directive allows member states freedom to decide on the implementation. Parody exemption is now recognized, for instance, in the Dutch and British copyright laws, while some other countries are still debating the necessity for an explicit allowance, concerned that otherwise there might be further complex problems of interpretation pertaining to the definition of parodic intent or the distinction between parodic and nonparodic transformative uses.
In contrast to the EU countries, the US legal system does not recognize parodies as such, but subjects them to the requirements of fair use, with particular consideration for the purpose and character of the way in which the copyrighted work is being used. In the US legal understanding, parody can be fair use if it targets its source text; however, if the parody merely borrows a discourse to criticize or poke fun at another subject, it might be interpreted as copyright infringement. Thus literary critical parodies are more likely to be accepted than, for instance, the borrowing of a recognizable discourse to satirize social evils or political stances. In Australia, legislators have circumvented the problem by extending the fair use exemption also to satire in order to allow for social and political commentary through imitation.38
The requirements and justifications for parody thus vary across different legal contexts. Added to this is the difficulty of recognizing parody, a contested concept even among literary and cultural scholars. International treaties like the Berne Convention have taken a stronger position in securing authors’ rights than in allowing reductions to those rights, leaving the latter at the discretion of the member states.
New media and the increasing opportunities for users to participate in creating variations based on existing works of literature have added further challenges to copyright control over transformative works. The most obvious example in literature is internet-based fanfiction, which not only radically differs from the premises of original creation underlying the copyright system but also challenges provisions for permissible reproductions. International by virtue of its medium and language (much of fanfiction is written in English regardless of the authors’ nationality), it can be hard to trace, as it is usually published under pseudonyms and on sites that have no permanent basis—a popular fanfiction site of today may not exist in a few years’ time. The emergence of fanfiction as popular new media in the 1990s quickly led to an outpouring of cease-and-desist letters from the legal departments of media companies administering the rights of favored targets of fanfiction, but since then fanfiction has managed to establish itself as an informal exception to copyright restrictions.39 This has partly to do with its noncommercial nature and with the often radically transformative nature of the rewritings, as well as with the establishment of an internal code of conduct within the community of fanfiction writers. This code requires clear signaling of the sources used and noncommercial orientation. The legal interest as well as the moral indignation of the fanfiction community has concentrated on cases where an author of a successful fanfiction “pulls” his or her fiction from the internet and publishes it as a book.40
That the fanfiction community relies heavily on internal regulation is by no means an exception. Copyright regulation did not emerge to fill a vacuum: in addition to various forms of state control, the literature institution has had and still has powerful means of controlling the limits of expression, especially concerning the uses of other authors’ texts. Prior to copyright laws, parody might have been regarded as a low form of literature, but there were no significant restrictions to creating parodies in Western societies. An element of restriction existed in the form of political or religious censorship, but it was only with the emergence of copyright laws that various conditions were assigned to the form and imitation of parody. Yet, as with fanfiction, so also in the case of parody: the literature institution functions according to its own rules and practices, allowing for and even encouraging a wider variety of expression than that granted by copyright laws.
Conclusion: Copyright Laws and Other Modes of Regulation
Copyright law is a system of paradoxes. The Berne Convention is the chief instrument of international copyright law, but in fact such a law does not exist: copyright matters are settled through national laws based on the assumption of a national origin, problematic in the current era of digital publishing and “born-translated” literature. Translation not only calls into question the very ontology of the singular work, it moreover demonstrates the cultural and collective basis of literary creation, evident also in the variety of other derivative works whose degree of originality the copyright laws and legal practices struggle to determine. The “cultural evil” of piracy, against which the 19th-century initiators of the Berne Convention lobbied, still continues to challenge the claim for the exclusive rights of authors: the global imbalance between rich copyright-holding nations and poor copyright-using nations demonstrates how copyright so often is the right of the strong and powerful, serving private interests rather than the public good.
International copyright was initially a writers’ project, and literary works are still the first category of protected objects mentioned in the text of the Berne Convention and many other legal documents. Yet literature has lost its significance as an exemplary type of intellectual property. Legal interest has turned elsewhere, to more lucrative commodities and technologies, creating a situation where on the one hand, the tendency to harmonize between types of property can force literature into molds that are alien to it as a cultural form, while one the other, the relatively small economic interest in literary works grants literature a certain autonomy from excessive copyright regulation.
“The achievements of 1878 will prove indestructible,” prophesized Victor Hugo in the literature congress that proved to be the decisive impetus for the creation of international copyright law.41 The Berne Convention has certainly proved tenable although it has not lived up to Hugo’s ideal of a beneficial balance between authors and their public. Maybe the task is even impossible. Maybe the solution would be to give up on the idea of a comprehensive copyright law and seek instead to emphasize the existing complementary and corrective means for distributing rights between the authors of literary works and their users. In the realm of the law, it is possible to find alternative metaphors and models for categorizing literary works: as Laurie Stearns has suggested, instead of types of property fixed into the form of works, we could understand literary creativity as a process that could be regulated through the instruments of contract law rather than the law of property.42 As regards enabling the use of literary works, authors can already now voluntarily relinquish their rights or parts of their rights through the Creative Commons licensing system which encourages the reuse of works.43 Within literature institution, it would be useful to investigate and verbalize the forms of informal regulation that govern literary creation through the conceptions and practices existing in the everyday lives of people who together make literature: authors, publishers, readers.
Discussion of the Literature
The study of the relations of literature and copyright takes place in a disciplinary setting that can be termed interdisciplinary (or multidisciplinary) intellectual property studies. Researchers working in this field often have their backgrounds in book history, cultural studies, comparative literature studies, or legal cultural studies. While it approaches the topic from a multiplicity of angles, it tends to take a critical stance toward the premises and justifications of the copyright system, which is in sharp contrast with the copyright-promoting agendas of governments, corporations, and many nongovernmental organizations.
In “Copyright and Intellectual Property: The State of the Discipline” (2013) Meredith L. McGill offers a useful overview of the development of this field since the 1980s, with an emphasis on Anglo-American book history and cultural studies. Eva Hemmungs Wirtén’s No Trespassing: Authorship, Intellectual Property Rights, and the Boundaries of Globalization (2004) investigates the inherent contradictions of intellectual property rights in a global setting through a series of case studies on print media and the book market. In Cosmopolitan Copyright: Law and Language in the Translation Zone (2011) Hemmungs Wirtén traces the debates around the right of translation in the negotiations towards the Berne Convention, focusing on the conflict between importing and exporting nations. Catherine Seville likewise explores the history and emergence of international copyright in her study The Internationalisation of Copyright Law: Books, Buccaneers, and the Black Flag in the Nineteenth Century (2006), which focuses on book trade in the transatlantic context.
Despite the activity of this field of research, the impact and role of international copyright legislation for literature remains a marginal topic in more mainstream literary research. For instance, studies of world literature seldom engage in in-depth discussions of the effects of international copyright legislation on the dissemination of literature or the cultural power relations between nations.
For scholars from a literary studies background, legal discourse and legal concepts can appear opaque and confusing. Jørgen Blomqvist’s Primer on International Copyright and Related Rights (2014) and Paul Goldstein’s International Copyright: Principles, Law, and Practice (2001) and its revised editions are useful and concise introductions to the principles of international copyright. Sam Ricketson and Jane C. Ginsburg trace the development and impact of the Berne Convention in their carefully documented International Copyright and Neighbouring Rights I-II (2006).
Questions of translation that were so acute in the negotiations involving the Berne Convention remain at center stage in the discussions of the premises of national origin, single authorship, and originality which underlie international copyright. The Legal Environment of Translation (2014) by Guillermo Cabanellas offers a comprehensive and accessible account of legal perspectives into translation, while Salah Basalamah’s Le Droit de traduire: une politique culturelle pour la mondialisation (2008) studies the political, cultural, and ethical aspects of translation and copyright, especially in the context of the developing nations.
The conflict of interest between the copyright-owning rich countries and the users of copyrighted materials in poorer countries is the basis for Alan Story’s fundamental critique of the Berne Convention in “Burn Berne: Why the Leading International Copyright Convention Must Be Repealed” (2003), while Daniel J. Gervais, in (Re)structuring Copyright: A Comprehensive Path to International Copyright Reform (2017), takes up the task of not only identifying the deficiencies of the treaty but also offering a concrete proposal for its structured revision.
Basalamah, Salah. Le Droit de traduire: Une politique culturelle pour la mondialisation. Ottawa, ON: Les Presses de l’Université d’Ottawa, 2008.Find this resource:
Bently, Lionel, Jennifer Davis, and Jane C. Ginsburg, eds. Copyright and Piracy: An Interdisciplinary Critique. Cambridge, UK: Cambridge University Press, 2010.Find this resource:
Biagioli, Mario, Peter Jaszi, and Martha Woodmansee. Making and Unmaking of Intellectual Property: Creative Production in Legal and Cultural Perspectives. Chicago and London: University of Chicago Press, 2011.Find this resource:
Blomqvist, Jørgen. Primer on International Copyright and Related Rights. Northampton, MA: Edgar Elgar, 2014.Find this resource:
Cabanellas, Guillermo. The Legal Environment of Translation. London and New York: Routledge, 2014.Find this resource:
Coombe, Rosemary J. The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. Durham, NC: Duke University Press, 1998.Find this resource:
Gervais, Daniel J. (Re)structuring Copyright: A Comprehensive Path to International Copyright Reform. Northampton, MA: Edgar Elgar, 2017.Find this resource:
Goldstein, Paul. International Copyright: Principles, Law, and Practice. Oxford and New York: Oxford University Press, 2001.Find this resource:
Hemmungs Wirtén, Eva. No Trespassing: Authorship, Intellectual Property Rights, and the Boundaries of Globalisation. Toronto: University of Toronto Press, 2004.Find this resource:
Hemmungs Wirtén, Eva. Cosmopolitan Copyright: Law and Language in the Translation Zone. Uppsala, Sweden: Uppsala Universitet, 2011.Find this resource:
Johns, Adrian. Piracy: The Intellectual Property Wars from Gutenberg to Gates. Chicago and London: University of Chicago Press, 2009.Find this resource:
McGill, Meredith. “Copyright and Intellectual Property: The State of the Discipline.” Book History 16 (2013): 387–427.Find this resource:
Ricketson, Sam, and Jane C. Ginsburg. International Copyright and Neighbouring Rights: The Berne Convention and Beyond. 2nd ed. Oxford and New York: Oxford University Press, 2005.Find this resource:
Saunders, David. Authorship and Copyright. London and New York: Routledge, 1992.Find this resource:
Saint-Amour, Paul K., ed. Modernism and Copyright. Oxford and New York: Oxford University Press, 2011.Find this resource:
Seville, Catherine. The Internationalisation of Copyright Law: Books, Buccaneers, and the Black Flag in the Nineteenth Century. Cambridge, UK: Cambridge University Press, 2006.Find this resource:
Story, Alan. “Burn Berne: Why the Leading International Copyright Convention Must Be Repealed.” Houston Law Review 40, no. 3 (2003): 763–803.Find this resource:
(1.) Norbert Bachleitner, “A Proposal to Include Book History in Translation Studies: Illustrated with German Translations of Scott and Flaubert,” Arcadia 44, no. 2 (2009): 425.
(2.) Sam Ricketson and Jane G. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond. 2nd ed. (Oxford and New York: Oxford University Press, 2005), 19–23; Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (Chicago and London: University of Chicago Press, 2009), 291–326.
(3.) G. P. R. James, “Some Observations on the Book Trade, as Connected to Literature, in England,” Journal of the Statistical Society of London 6, no. 1 (1843): 57.
(4.) James, “Some Observations,” 57.
(5.) Ricketson and Ginsburg, International Copyright and Neighbouring Rights, 42.
(6.) Victor Hugo, “Address of Victor Hugo to the International Literary Congress,” in Copyright Perspectives, ed. Brian Fitzgerald and John Gilchrist, trans. Benedict Atkinson (Cham, Germany: Springer 2015); Eva Hemmungs Wirtén, No Trespassing: Authorship, Intellectual Property Rights, and the Boundaries of Globalization (Toronto: University of Toronto Press, 2004), Kindle edition, 55–122.
(7.) Ricketson and Ginsburg, International Copyright and Neighbouring Rights, 52–58.
(8.) Current protocol of the Berne Convention can be accessed at the WIPO site: Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), 2017. The text of the Berne Convention of 1886 can be accessed at Primary Sources on Copyright (1450–1900), edited by L. Bently and M. Kretschmer.
(10.) Ricketson and Ginsburg, International Copyright and Neighbouring Rights.
(11.) In legal terms, “original work” means a work that can be distinguished from other works due to the creative effort of its maker(s); it doesn’t necessarily require the kind of exceptional creativity and distinction that is often associated with the term original in literary discourse. See also Ricketson and Ginsburg, International Copyright and Neighbouring Rights, 404–406.
(12.) Alan Story, “Burn Berne: Why the Leading International Copyright Convention Must Be Repealed,” Houston Law Review 40, no. 3 (2003): 789.
(13.) It should be noted that in copyright discourse, “literary works” is an extensive category that includes, for example, copyright-protected software. The expansion of the category reflects the tendency of copyright legislation to assimilate new media into existing categories. This article deals primarily with literary works that exist in book form (whether as e-books or printed matter).
(14.) Johns, Piracy, 6.
(15.) For details about the case of Ulysses, see Robert Spoo, “Copyright Protectionism and Its Discontents: The Case of James Joyce’s Ulysses in America,” The Yale Law Journal 108, no. 3 (1998): 663–667.
(16.) Daniel J. Gervais, (Re)structuring Copyright: A Comprehensive Path to International Copyright Reform (Northampton, MA: Edgar Elgar, 2017), 123–126.
(17.) Story, “Burn Berne,” 768 and passim.
(18.) Shuyu Kong, Consuming Literature: Best Sellers and the Commercialization of Literature in Contemporary China (Stanford: Stanford University Press, 2005); Robert E. Baensch, ed., The Publishing Industry in China (London and New York: Routledge, 2017).
(19.) Paul Harpur, Discrimination, Copyright, and Equality: Opening the E-book for the Print-Disabled (Cambridge, UK: Cambridge University Press, 2017), 118–120; Dennis Tenen and Maxwell Foxman, “Book Piracy as Peer Preservation,” Computational Culture, November 9, 2009, 2017.
(20.) Hugo, “Address,” 2, 3.
(21.) Salah Basalamah, “Translation Rights,” in Handbook of Translation Studies 3, ed. Yves Gambier and Luc van Doorslaer (Amsterdam and Philadelphia: John Benjamins, 2012), 198.
(23.) WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Geneva: WIPO, 1978), 19.
(24.) Lawrence Venuti, “Translation, Authorship, Copyright,” The Translator 1, no. 1 (1995): 1–2.
(25.) Venuti, “Translation,” 6.
(26.) Venuti, 5–6, 13–17.
(27.) Venuti’s first proposal would mean a return to a status similar to that arising from the 1886 protocol of the Berne Convention, which restricted the author’s right of translation to ten years from the publication of the original, while the second proposal for the exclusive translation right evokes a situation the original signatories of the Berne Convention sought to avoid: Article 6 of the 1886 text prescribes, in relation to works in the public domain that are otherwise free from restrictions relating to translating, that translators “cannot oppose the translation of the same work by other writers.” See Berne Convention (1886), article 5 § 1 and article 6 § 2, in Primary Sources on Copyright (1450–1900), edited by L. Bently and M. Kretschmer, 2017.
(28.) Eva Hemmungs Wirtén, Cosmopolitan Copyright: Law and Language in the Translation Zone (Uppsala, Sweden: Uppsala Universitet, 2011), 49–67.
(29.) Rebecca L. Walkowitz, Born Translated: The Contemporary Novel in an Age of World Literature (New York: Columbia University Press, 2015), Kindle edition, 3.
(30.) Walkowitz, Born Translated, 4.
(31.) Cabellanas, Legal Environment of Translation, 64–66.
(32.) Gervais, (Re)structuring Copyright, 61–62.
(33.) Paul Goldstein, International Copyright: Principles, Law, and Practice (Oxford and New York: Oxford University Press, 2001), 300–301.
(34.) Miguel de Cervantes Saavedra, Don Quixote, trans. Charles Jarvis (Oxford and New York: Oxford University Press, 2008.
(35.) Margaret A. Rose, Parody: Ancient, Modern, and Post-Modern (Cambridge: University of Cambridge Press, 2000).
(37.) Anette Alén-Savikko, “Vakavasti otettava (va)iva—tekijänoikeudellisia huomioita parodiasta,” in Oikeus, tieto ja viesti: viestintäoikeuden vuosikirja 2015, eds. Päivi Korpisaari and Anette Alén-Savikko (Helsinki: University of Helsinki Faculty of Law, 2016), 88–151; Erik Ficks, “Om det icke-existerande eller harmoniserade parodiundantaget i svensk upphovsrätt,” Nordiskt Immateriellt Rättsskydd 3 (2015).
(38.) Copyright Law of the United States, 17 U.S.C. § 107, Limitations on exclusive rights: Fair Use. The US Copyright Law can be accessed at Copyright.gov; see also Jani McCutheon, “The New Defence of Parody or Satire under Australian Copyright Law,” Intellectual Property Quarterly 2 (2008): 193–212.
(39.) Aaron Schwabach, Fanfiction and Copyright: Outsider Works and Intellectual Property Protection (London and New York: Routledge, 2016); Anne Jamison, Fic: Why Fanfiction Is Taking Over the World (Dallas: Smart Pop, 2013).
(40.) On the practices of the fanfiction community, see Jamison, Fic.
(41.) Hugo, “Address,” 1.
(42.) Laurie Stearns, “Copy Wrong: Plagiarism, Process, Property, and the Law,” California Law Review 80, no. 2 (1992): 513–553.