22

Historical Overview of Formation of International

Copyright Agreements in the Process of Development ofInternational Copyright Law from the 1830s to 1960s
Long-term Overseas Research Fellow: Akiko Sonoda
This research aimed to clarify how the international agreements for copyright protection
have been formed by tracing the debates that have been held in the process of the establishment
and development of international copyright law from the 1830s when moves toward establishinginternational copyright law and treaties became active in Britain to 1967 when the WorldIntellectual Property Organization (WIPO) was established. As commonly regarded by copyrighthistory researchers, copyright law of the 20th century and that of today heavily rely on copyright
law from the 19th century, a time when copyright was established as an economic right. It was
confirmed in this research that international copyright treaties developed step-by-step frombilateral treaties into multilateral treaties and acted as a driving force in raising the level of
copyright protection in various countries. It was also found that, during the period until theestablishment of the Berne Convention and the U.S. International Copyright Act (1891), literaryauthors from various countries participated directly and actively in discussions on copyrightbased on the awareness that policies on copyright law greatly affected the quality of the works
produced and the culture of the relevant countries.

I

Congress or the Parliament and presented
arguments on copyright protection throughnewspapers, magazines, books and othermedia.
As commonly regarded by copyrighthistory researchers, copyright law of the 20th
century and that of today heavily rely on
copyright law from the 19th century, a time
when copyright was established as an
economicright.
Indeed,the
Berne
Convention was drafted based on the ideas ofprevious bilateral copyright treaties thatwere concluded between various countries
with the aim of resolving the problems inthese treaties. Furthermore, these treaties
were amended based on the Berne
Convention after it was established in 1886;and such international agreements as the
Universal Copyright Convention of the U.N.
Educational,
ScientificandCultural
Organization (UNESCO) and the TRIPS
AgreementoftheAgreementonTrade-Related
AspectsofIntellectual
Property Rights (TRIPS Agreement) of theIntroduction: Purpose and problem
awareness of the research

The purpose of this research is to clarify
how the international agreements for
copyright protection have been formed bytracing the debates that have been held in
the process of the establishment anddevelopment of international copyright law
from the 1830s to 1967—the year in which
the World Intellectual Property Organization(WIPO) was established. Of the period
covered by this research, the debates during
the time leading up to the establishment of
the Berne Convention of 1886 andestablishment of the International Copyright
Act of 1891 in the United States that
extended copyright protection even to
non-U.S. citizens who have satisfied certain
requirements were the most heated debatesin copyright history. For example, in thisperiod, writers as well as artists, publishers,
typesetters, printers, and bookbinders
actively appealed to politicians and the1
IIP Bulletin 2007

World Trade Organization (WTO) wereformed to supplement the Berne Convention,
giving consideration to the problems in the
Berne Convention and responding to thechanging demands of the times.
This research aims to clarify the processof development of international agreementsfrom the 19th century to the 20th century.
While this research is a historical study on
the process of the establishment anddevelopment of international copyright law,it also aims to offer material for debates onwhether the information that will be
distributed through future information
reproduction and distribution technology
should be protected under the conventional
copyright law.

awareness among writers to take actions on
defining what copyright law ought to be, andmany writers including William Wordsworth(1770-1850), Robert Southey (1774-1843),
and Charles Dickens (1812-1970) actively
called for revision of national andinternational copyright systems. They
considered that the way in which copyright
was protected affected the quality of theworks produced, and exerted efforts toestablish their own economic rights as
authors and to develop the culture of theircountry and pass it on to future generations.
From the beginning of the 19th century until
the establishment of the Berne Convention,
creators themselves worked most actively
and directly toward revision of copyright law
in the history of copyright.

II

3

Growth of interest in international
copyright in the 1830s andconclusion of bilateral treaties

Actual situation of publication of
pirated copies
Both in Europe and the U.S., publishingother countries’ publications had been acommon practice, so there was hardly any
awareness that such an act was problematic
until the 19th century. However, there had
been a rise in awareness since around the1830s that the complete lack of payment toauthors for their works published in large
amounts overseas was a problem. Works fromthe U.S. and other countries were also being
published without the authors’ permission in
the U.K.

1

Developments in the U.K. in the 1830s
In the second half of the 1830s, the needfor agreements on international copyrightprotection came to be recognized in the U.K.,
and an international copyright bill presented
to Parliament by Charles Poulett Thomson(1799-1841) was enacted at the end of July
1838. This act extended the same protection
as that for works published in the U.K. toworks first published overseas, as long as
they were registered and their copies were
deposited in the U.K. by the time limit
specified by Order in Council. Although theact of 1838 could not actually serve as a basis
for concluding bilateral treaties until the1844 amendment, this act became the first
British international copyright act to open up
the possibility for concluding bilateraltreaties on copyright protection. As a result,the U.K. concluded bilateral agreements on
copyright protection with Prussia and other
German states from 1846 to 1847, withFrance in 1852, with Belgium and Spain in1854 and with Sardinia in 1860.
2

4

Mutual international copyright treaty
with Prussia
While the British Copyright Act wasestablished in 1709, German writers could
not enjoy statutory copyright system for morethan one century after that. However,Prussia took the initiative to conclude
treaties on copyright protection with theother states of the German Confederationfrom 1827 onward, and in 1846, it concluded
an international copyright treaty with the
U.K. Due to the negotiations in concluding
this treaty, the subject matter protectedunder the U.K. International Copyright Act
was further expanded to cover artistic works,
in addition to literary works.

Changes in the awareness of authors
In the 19th century, there was growing
2

IIP Bulletin 2007

III Developments
towardtheestablishment of the International
Copyright Act in the U.S.: Focusing
on domestic circumstances andsituations

5

Bilateral agreement with France
Although treaties with Prussia and other
German states turned out to be concluded
earlier, it was in fact France that first
proposed a bilateral agreement on copyrightprotection to the U.K. When concluding aninternational copyright treaty with France in
1852, revisions were made to the U.K.
Copyright Act on the handling of translations.
The handling of translations and adaptations
was the focus of the negotiations inconcluding the treaty.

1First moves in the 24th Congress, 2ndSession, U.S. in 1837
Almost simultaneous to the moves
towardestablishment ofinternational
copyright law in the U.K., Senator Henry
Clay made the first proposal to the U.S.
Congress to establish an international
copyright law on February 2, 1837. A selectcommittee was formed in response to his
proposal, and a bill was presented, but thebill could not proceed to the third reading
during the session of the Congress.
Given that it took more than 50 years
from then for the act commonly known as the
Chace Act of 1891 to be established in the
U.S., it is very unlikely that international
copyright law would have been established in
the U.S. at that point even if the Congresssession had ended on a later date.

6

Summary
Developmentoftheinternational
copyright act can be regarded to have been inthree phases. The first phase was when law
was developed to unilaterally recognize
national copyright protection for people ofother countries as well, as long as theysatisfied certain requirements, without
specifying the other country, such as the 1838
International Copyright Act of the U.K. The
second phase was when bilateral treaties
were concluded, such as between the U.K.
and Germany, and between the U.K. andFrance. This was followed by the third phase
where multilateral treaties were concluded,
as represented by the Berne Convention.
Bilateral international copyright treaties
had a large influence on the U.K. national
copyright law. The 1838 International
Copyright Act was amended to extend
copyright protection not only to literaryworks, but also to artistic works in order toconclude a treaty with Prussia; and someprovisions of the 1844 International
Copyright Act were abolished to recognize
protection for translations that satisfy
certain requirements as well, as a result of
negotiations with France. Also, the process oflearning about the level of protection of othercountries’ copyright laws and recognizing the
low level of protection within the U.K.
contributed to raising the level of copyrightprotection within the U.K.

2

Movements in the 25th CongressSoon after the 2nd session of the 25th
Congress started on December 4, 1837,
Senator Clay presented a copyright act
amendment bill again to the Senate on
December 13. The bill was read twice andwas referred to the Committee on Patents
and the Patent Office. However, starting witha petition from Philadelphia citizens
opposing the bill on January 15 of thefollowing year, many petitions opposing theinternational copyright bill were presented
both to the Senate and the House ofRepresentatives.
When the International Copyright Act of1838 was established in the U.K., the U.K.
government sent this act to the U.S. throughAndrew Stephenson, the U.S. Ambassador to
London,for
preliminary
negotiation.
However, this did not lead to any substantial
developments.

3
IIP Bulletin 2007

consideration in the U.S. since the time of its
foundation. However, its primary purpose
was to provide people an incentive to makecultural and industrial contributions that arenecessary for the young country to achieve
development, rather than to protect therights of authors and inventors.

3

Petition from Washington Irving et al.:27th Congress
In the 2nd session of the 27th Congress(December 6, 1841 to August 31, 1842), a
petition by 24 U.S. citizens including
Washington Irving (1783-1859) seeking
establishment of an international copyrighttreaty was presented to the House ofRepresentatives and the Senate, prompted by
the visit of Charles Dickens to the U.S. In
response, a select committee was organizedin the House of Representatives.
Dickens had high expectations for theconclusion of a copyright treaty with the U.S.,
but the impression that an international
copyright agreement would not be concluded
easily was already starting to pervade in the
U.S.

6

Establishment of American literatureand international copyright law
The main forces supporting international
copyright law in the U.S. were writers.
Publishers, which were only able to makesmall profits under the recession, werereluctant to publish the works of U.S. writers
by paying copyright royalties. U.S. writersconsidered that such a situation was
extremely detrimental to the U.S. in forming
its own culture.

4

Establishment and development of thereprint market
The period from 1800 to the 1860s wasreferred to as the “Great Age of Piracy,” inwhich foreign works were published without
the consent of the authors or paying themmanuscript fees. In the first place, there was
the Enlightenment idea that both U.S.
independence and the French Revolution
were realized because information andthoughts were freely distributed between
people. So in the U.S., there seemed to behardly any feeling of resistance against
reprint itself. The recession beginning in
1837 also contributed to the active
publication of British works in the U.S.
The primary reason that the U.S. did notconsent
tointernational
copyright
agreements including those on a bilateralbasis and those on a multilateral basis suchas the Berne Convention was that it was
extremely difficult to predict the impacts ofthese agreements on U.S. industry.

7

American Authors and British Pirates:
Brander Matthews and Mark Twain
In 1888, Brander Matthews and MarkTwain held a public debate in the New
Princeton Review on the necessity for aninternational copyright law. Twain argued it
was the author’s fault for not taking the stepto acquire copyrights in the U.K. and its
colonies when the copyrights could have beenacquired by publishing the work in the U.K. a
day prior to its publication in the U.S., andstaying in Canada, which was a Britishcolony, on that day. Meanwhile, Matthews
sought establishment of a completely
reciprocal international copyright treaty.
Their ideas were thus in clear contrast.
Matthews thought that the establishment ofa fair copyright protection system between
the U.K. and the U.S. would free U.S. writersfrom the excessive competition with British
writers, and would allow more U.S. writers’
works to be published and read within the
U.S.

5

The U.S. Constitution and copyright
Article 1, Section 8 of the U.S.
Constitution provides for the handling ofintellectual property, and the U.S. firstfederal copyright act was established as earlyas May 30, 1790. In this manner, protectionof copyrights and patents had been taken into

8

Establishment
of
the
1891
International Copyright Act
Although a large number of petitions infavor of international copyright law andthose opposing it continued to be presented to
the U.S. Congress from 1842 onward, none
4

IIP Bulletin 2007

led to concrete moves toward establishmentof international copyright law. A change
occurredinthemovement
towardestablishing international copyright law
when Harper & Brothers began to support
international copyright law in the second halfof the 1870s. Harper & Brothers judged it tobe wiser to prevent other publishers’
publicationofreprints
throughaninternational copyright agreement with the
U.K. than fighting a price competition withemerging publishers in the Midwest region.
The stagnant moves toward establishinginternational copyright law in the U.S. were
stimulated by publishers’ active attitude
toward the idea, which began to be observed
from around 1880, as well as acceleration of
the
moves
towardestablishmentof
multilateral international copyright law
under the initiative of the Association
Littéraire et Artistique (ALAI) in 1881. The
bills were presented by Harper & Brothers,
William Dorsheimer, Joseph R. Hawley andChase, and these bills were deliberated.
Finally, in March 1891, an international
copyright law was established in the U.S.

IV Establishment
Convention

the

Berne

1

Initial moves toward establishment ofmultilateral treaties
A considerable number of bilateraltreaties had been concluded since the 1830s,
but as Sam Ricketson points out, they were
far from being systematic. In such a situation,
moves toward the establishment of amultilateral international copyright treaty
started in the mid-19th century under the
French initiative.
The Congress on Literary and Artistic
Property was held in Brussels in September
1858, drawing 300 participants, anddiscussions were held to consider the
problems experienced in bilateral treaties.
The resolution in this congress had a more
idealistic color than the Berne Convention,
but its content generally coincided with thematters that were subsequently stipulated in
the Berne Convention.
2

Moves observed in the U.K.
In 1875, the Royal Commission on
Copyright was appointed to investigate
desirable copyright law. Three years later, in
1878, the commission completed a report ofmore than 300 pages, which summarized theresults of investigation and analyses on the
U.K., colonial and international copyright.
The report included recommendations on theprotection of plays and music as well as thecommission’s view of desirable international
copyright rules. The report indicated more
realistic forms of copyright protection andtreaty as well as concrete measures for
simplifying or improving the procedures,showing effective countermeasures for the
copyright-related problems at the time.

9

Summary
The U.S. was basically a user ofintellectual property produced overseas at
the time the moves toward the establishmentof an international copyright law started in
the 1830s. However, after undergoing theAmerican Renaissance in the mid-19th
century, which is said to indicate the U.S.’
literary independence, the country achieved
growth toward the 20th century, andtransformed itself into an exporter ofintellectual property in the field of not only
literature, but also film and music by the20th century. Just as writers including
Matthews, Irving and Whitman had asserted,
establishment of international copyright law
was deeply related to the establishment anddevelopment of U.S. national literature andculture.

3

Establishment of the ALAIAs a result of a conference hosted by
Société des Gens de Lettres of France for 12days starting June 17, 1878, Association
Littéraire et Artistique (English name:International Literary Association; later
renamed the Association Littéraire etArtistique Internationale [ALAI] in 1883)

5
IIP Bulletin 2007ofprotection under the law of the country inwhich protection is sought, but theconference decided on adopting the treatment
referred to in (i). Discussions were also heldon the procedure to receiving protection andhow translations and adaptations should beprotected, and a provisional text of the treaty
was developed.
In 1885, 26 delegations from 16 countries,
including the new participants—the U.S.,
Italy and Spain—attended the conference.
The conference was held in Berne,
Switzerland, and the provisions of the treaty
to be signed in 1886 as the Berne Convention
were drafted.
Countries had their respective opinions,such as Germany insisting on setting certain
conditions that should be uniformly applied
to all member countries, and France arguingthat translations should be protected incompletely the same manner as the original
works. However, consideration was given so
as not to hinder future accession to the treaty
by countries with a low copyright protectionlevel.

was established.
Later, the association held a meeting in
London in 1879, Lisbon in 1880, Vienna in
1881, and Rome in 1882 and held repeateddiscussions on a desirable international
copyright treaty.

4

ALAI conference in 1883
In 1883 when the Paris Convention, amultilateral treaty on industrial property
rights, was concluded, the moves toward
establishment of an international copyrighttreaty also stepped up to a new phase onreceiving Schmidt’s proposal at the previous
year’s Rome meeting. In response to arequest by a committee of the ALAI, theSwiss government agreed to holding aninternational conference in Switzerland.
Numa Droz (1844-1899) was appointed as the
person responsible for the conference.
After three days of discussion, a draft
treaty consisting of 10 articles was created.
Although this draft had some problems
including a lack of provisions on the term ofprotection and on the limitation of the rightof reproduction regarding adaptation andreproduction of artistic works, it became thebasic foundation for creating the Berne
Convention.

6

Establishment
of
the
Berne
Convention
The conference, held on September 6,
1886, was attended by 12 countries including
the U.K., France, Germany and Switzerland.
Japan and the U.S. also participated as
observers. The Berne Convention was signed
on September 9, 1886 by 10 countries.
The Berne Convention, which wasestablished under the initiative of France,
Germany and the U.K., was born in the oldworld and incorporated the values of the oldworld, and it undeniably lacked universality
in the true sense. Nevertheless, this treaty,
which was established after five years ofcareful discussion considering the problems
involved in the bilateral treaties in the past,
still remains to be one of the important basic
agreements on international copyright today
while undergoing regular revisions.

5International conferences from 1884
to 1886
At the first diplomatic conference thatstarted on September 8, 1884, delegations
from 10 countries participated, and theyattended the conference taking a cautious
stance. Although Germany argued that there
was the need to codify unified rules that themember countries should observe, andopposed protection of the works of authors
who were not citizens of the member
countries,
Switzerland
and
other
participating countries showed a negative
view on this out of concern that this would
make it more difficult for the countries toreachageneralagreementonaninternational copyright treaty. Opinions werealso divided on whether (i) the term ofprotection under the law of the country oforigin should be applied, or (ii) the term of
6
IIP Bulletin 2007

Vorder to allow the U.S. and othernon-members to the Berne Convention toparticipate in a basic agreement oninternational copyright protection.

International Copyright Law after
Establishment
of
the
Berne
Convention

1

The U.K. Copyright Act of 1911
The Copyright Act, which was revised forthe first time in about 70 years since 1842,
indicated that the times of distributing
information only through paper andperformance were over. The act stipulated
that copyright holders had monopolistic
rights over publication and reproduction of
their works, and had rights on dramatizing anovel or novelizing a drama. In addition, theterm of copyright protection was stipulated
as the author’s lifetime plus 50 years after
his/her death, in compliance with the Berne
Convention as revised at Berlin.

3

Overview of revisions of the Berne
Convention
The Berne Convention has been amended
seven times since its establishment in 1886,
in Paris (1896), Berlin (1908), Berne (1914),
Rome (1928), Brussels (1948), Stockholm(1967) and Paris (1971). The major trend wasan increase in the number of member
countries, expansion of the protected subject
matter, and lengthening of the term ofprotection.
The important points of the revisions in
Paris were: that protection of rights intranslations
andserialworks
wasstrengthened, and the possibilities for
copyright protection were opened up for
authors of non-member countries as well; andthat conversion from a novel to a drama andfrom a drama to a novel was made subject toprotection. Also, in order to make it easier toaccede to the convention, accession to part ofthe convention was allowed in addition toaccession to the entire convention.
With the revisions at the following Berlin
conference, it was once again clearly
indicated that original literary works,
dramatic works, and artistic/musical works
were to be protected by copyright, be they
published or performed works, and thattranslations, adaptations, and musicalarrangements were to be protected asoriginal works. It was also provided thatarchitecture, choreography, and pantomimes
were subject to protection, new media such as
automatic pianos (pianolas), gramophones,
and cinematographs were covered as well,and in contrast to newspaper articles that
could be freely reprinted unless thereprinting was clearly prohibited, articles of
periodicals could not be reprinted without theauthorization of the author. Above all, themost important change was that the term of
copyright protection was stipulated to be atleast 50 years after the death of the author.
At the Berne conference in 1914, a

2

The U.S. and the Berne Convention
The establishment of the Berne
Convention applied pressure onto the moves
toward establishment of the International
Copyright Act in the U.S. in 1891. However,even after the establishment of theInternational Copyright Act, the U.S.
continued to refuse to join the Berne
Convention. The reason is considered to bethat the U.S. copyright law and the Berne
Conventiondifferedwithrespect
toimportant features including the need forregistration, protection or otherwise of moral
rights, and the term of protection.
Nevertheless, even before the U.S.
accession to the Berne Convention on March
1, 1989 (agreed on November 16, 1988), U.S.
works were protected by the provisions of theBerne Convention in the convention’s
member countries including Canada and the
U.K., as long as they were published in thesecountries at the same time as in the U.S. The
fact that the U.S. was relying on the Berne
Convention while not joining the Berne
Convention itself generated conflict between
the U.S. and the Berne Convention’s member
countries.
In light of this situation, the U.N.
Educational,
ScientificandCultural
Organization (UNESCO) established the
Universal Copyright Convention in 1952 in
7
IIP Bulletin 2007

collaboration with any other internationalorganization, and administrative cooperation
among the unions established under theconventions that are managed and run by
WIPO. WIPO became a specialized agency of
the United Nations in 1974. The purpose wasto draw developing countries into the system
of intellectual property. Although hardly any
developing countries were members of the
BIRPI, 47 developing countries, accountingfor 57 percent of the member countries of theParis Convention and the Berne Convention,
had joined WIPO by 1970.

stipulation was made to cancel protection forauthors of any non-member countries that
did not appropriately protect the works ofmember countries, as a measure against thesituation where authors of the non-member
U.S. were benefiting from the Berne
Convention.
At the next Rome conference in 1928, fivesectional meetings discussed the following
topics: moral rights; radio broadcasting; rightof automatic copying and compulsory license;
cinematographic and photographic works;
and industrially applied artistic works.
Discussions were also held on the pros andcons of allowing partial accession to theconvention, but in the end, the policy to allow
partial accession was maintained.
At the conference held in Brussels in
1948, it was decided to set the term of
copyright protection at 50 years after thedeath of the author, and to include
cinematographic works, photographic works,
and industrially applicable artistic works inprotectable subject matter.
At the Stockholm conference in 1967,
representatives of many developing countries
participated, and presented the problems
these countries were facing in enjoying thebenefits of intellectual property. As a result of
discussions,aprotocolon
copyright
protection in developing countries wascreated. In addition, establishment of theWorld Intellectual Property Organization
was decided, while the term of protection forcinematographic works was changed from 25
years to 50 years.
In the revisions at Paris in 1971, theprovisions
stipulating
protectionindeveloping countries that had been createdas a protocol at the previous Stockholm
conference was incorporated as an appendix
to the main text of the convention.

VI Conclusion
From the 19th century until today
copyright law has developed in the directionof strengthening the protection of authors. In
the U.K., for example, it was in 1842 that thelaw stipulated copyright protection for 42
years from the first publication or for the
lifetime of the author plus seven years,
whichever was longer. Before that, the termof protection was 28 years from the firstpublication or for the lifetime of the author,
whichever was longer, according to the 1814
Copyright Act. In addition, large amounts ofpirated copies were published overseas at low
prices without the consent of the authors. In
those times, when authors’ rights were much
weaker than now, Wordsworth, Dickens andother writers insisted on an extension of theterm of copyright protection. Their objectives
were to secure economic rights in theoutcomeof
theirintellectual/spiritual
activities, and to establish a copyright law
that would provide an incentive to people tocreate works that could be called culturalcontributions of true value, which would taketime to be appreciated by the general public.
There were also developments where thenational copyright laws of various countries
underwent revisions in line with theconclusions of bilateral or multilateraltreatiesoncopyright
protectionornegotiations for such treaties, which hadtaken place since the 19th century. One
factor behind the revision of the U.K.

4

Establishment
of
the
World
Intellectual Property Organization
Establishment of WIPO was decided at aconference held in Stockholm in July 1967.
WIPO stipulates its objectives to be topromote the protection of intellectual
property through cooperation among states,
8
IIP Bulletin 2007

Copyright Act in 1842 after five years of
discussion from the first presentation of theamendment bill was the government’s wish toraise the U.K.’s low level of copyrightprotection, which had been a barrier inconcluding a bilateral treaty with Prussia.
After that, many more bilateral andmultilateral international copyright treaties
were concluded, with countries strongly
asserting points that mainly involved theirown interests (such as protection of artistic
works in the case of Germany and protectionof translations in the case of France) andmaking efforts to compromise on points thatwere of relatively low priority for them. In
this process, the countries revised their
copyright laws to comply with theinternational copyright laws, and this trend
has continued until today. This research
confirmed that international copyright laws
have raised the standards of various
countries’ national copyright laws and acted
as a driving force to strengthen copyrightprotection in these countries.
The author hopes that this report will
prove to be helpful for future discussions on
the move toward extending the term of
copyright protection from the creator’s
lifetime plus 50 years to the creator’s lifetime
plus 70 years and how digital contents should
be protected.

9
IIP Bulletin 2007