Author: Robert Spoo

Abstract: The chapter explores the founding rules of America’s protectionist copyright law, which openly encouraged the unauthorized reprinting of new foreign works, generated frenzied competition for those free resources, and set in motion a counter-practice of self-restraint among American publishers that came to be called the courtesy of the trade.

As a way of regulating destructive competition for unprotected titles, and to give themselves an aura of respectability and fairness, the major publishers adopted trade courtesy, whereby, in its simplest form, the first publisher to announce plans to issue an American edition of an unprotected foreign work acquired informal title to that work — a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. Drawing on the insights of scholars of social norms and common-pool regulation, the chapter offers a detailed account of nineteenth-century courtesy and its regime of entitlements, exceptions, and penalties. Courtesy restored a fragile order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights recognized by this self-interested chivalry.

Citation: Spoo, Robert E., The American Public Domain and the Courtesy of the Trade in the Nineteenth Century (May 3, 2017). Without Copyrights: Piracy, Publishing, and the Public Domain (New York: Oxford University Press, 2013; paper 2016).

Full text on SSRN: https://ssrn.com/abstract=2962748