Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1857

Commentary on Bilateral Copyright Convention between Spain and UK (1857)

José Bellido (Birkbeck College, University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramón Casas Vallés (Universidad de Barcelona)

 
Please cite as:
Bellido, J., Xalabarder, R. & Casas Vallés, R. (2011) ‘Bilateral Copyright Convention between Spain and UK (1857)” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1.  Full title

2.  Abstract

3.   Political Predictions

4.  Time and Chance

5.  The Treaty

6.  References

1. Full title

“Convention on literary and artistic works between Spain, Great Britain and Ireland” (1857)

Full title original language

 “Convenio sobre obras literarias y artísticas entre España, la Gran Bretaña é Irlanda” (1857)

2. Abstract

The negotiation of the convention between Spain and the United Kingdom was thwarted for three years but was finally signed in 1857. The commentary considers the initial steps taken in the negotiations by Lord Howden, the difficulties in controlling the discussions and the content of the agreement. In particular, it shows the influence of the previous French-Spanish copyright treaty (1853) in the activation of interest in the British Foreign Office. And it continues by highlighting issues of copyright diplomacy and the final content of the agreement. 

3.         Political Predictions

 In 1847, one speaker at the Spanish Senate had imagined a future absent of bilateral copyright agreements.[1] Despite the fact that the Literary Property Act (1847) formulated a desire for international agreements to be fostered,[2] he could not foresee the possibility of stitching together the copyright laws of different countries. The variety of legislation produced - in his view - insurmountable obstacles. One decade later, Spain had signed not only one but two bilateral copyright agreements.[3] The senatorial vision proved totally wrong because the difficulties were overcome. And this was accomplished in many different ways. In fact, a “complex web of bilateral agreements” was formed throughout the nineteenth century.[4] Retrospectively, we may now perceive different patterns of bilateralism during this time. These patterns correspond with different waves of diplomatic negotiations. The first “period” could loosely be concentrated on the 1840s and 1850s and the second surely began in the 1880s.[5] Of all the considerable differences among them, perhaps the most interesting one refers to the way in which negotiations were seen. By the 1880s the content of negotiations (and not only treaties) was much more visible in newspapers and legal journals, such as Bibliographie de la France, Clunet and Le Droit d’Auteur. It is also clear that a different setting had emerged: it was then a scenario occupied by new international and professional actors such as ALAI (Association Littéraire et Artistique Internationale). In other words, a landscape of innovative projects for universal and regional copyright perspectives had arisen.[6] Nonetheless, what the negotiation of all bilateral copyright agreements offered was a direct challenge to political predictions. The success or failure of negotiations was not only dependent on an assessment of compatibility of laws but mainly on the control of different contingent factors, especially time (legislature) and connections (influence).

Political connections became the main feature behind the signature of the Spanish and French copyright treaty (1853).[7] That, at least, was the view of a privileged observer, J. H. Caradoc, Lord Howden (1799-1873), British Minister at Madrid.[8] According to him, such an arrangement was so advantageous to the French that it constituted an “undeniable proof” of their influence in Spanish politics.[9] In his account, he gave more details as to the way such influential persuasion had been manifested. Two actions had been crucial: the perseverance of French ambassadors and the “agency of decorations” distributed among politicians and literary men in order to persuade them. The Franco-Spanish bilateral copyright treaty was signed on December 1853 and ratified in early January 1854.[10]

4.  Time and Chance

The bilateral copyright treaty and the diplomatic skills developed by the French had immediately grabbed the attention of Lord Howden. Such instant awareness should not surprise us. The Spanish press had been commenting on and criticising the negotiations.[11] And for many days, attacks on the treaty covered the front pages and featured in the editorial comments of newspapers such as La España and El Clamor Público.[12]  In February 1854, Howden’s dispatch to the British Foreign Secretary, G. W. F. Villiers, 4th Earl of Clarendon (1800-1870) enclosed the noticeably French-Spanish copyright convention.[13] Expectations were generated at the Foreign Office in London. If France had obtained a favourable copyright treaty with Spain, the existing inertia could allow Britain to sign a similar one. More precisely, if the French had used influence, the key issue was to concentrate on diplomatic form and manner. Spain could not refuse to sign a similar treaty with the United Kingdom: it would be discourteous. Lord Howden was a bit more cautious than the Foreign Office since he had witnessed how the press had attacked “without mercy” the previous negotiations.[14]  Nonetheless, his view was that the only way of avoiding press coverage that could jeopardise the negotiations was to broker “a like convention” as quickly as possible.[15] In so doing, Howden was then convinced that the enterprise would succeed “one way or another” for he had the support of the literary establishment in Spain.[16]  What he could not have suspected was that the confidential communication and the instructions conveyed thereof had been intercepted by the Spanish intelligence system.[17]  The confidential dispatch between London and Madrid was leaked in London and translated and read in Madrid.[18] So when Lord Howden wrote to propose a “nearly identical convention”, such a move was already expected by the Spaniards.[19] As a result, the initial steps taken by the British diplomat in Madrid were not as simple and easy as his Foreign Office had first envisaged. 

Nevertheless, another negotiating opportunity immediately arose. The Spanish heads of the government suddenly changed during the summer of 1854.[20] As soon as the new Spanish Minister of Foreign Affairs took office, Howden informed him of the British desire “to conclude a similar” copyright treaty to the one Spain had signed with the French.[21] Not only did he insist on the idea of a “like convention” and a “speedy agreement”,[22] he also tried to convince the newcomer that his predecessor in office had agreed to everything and that it was just a matter of routine to sign the treaty. But again, the strategy did not work as smoothly as had been expected since the response of the Spanish minister was reluctant, to say the least. Obstacles and difficulties arose. For instance, the Spanish Minister suggested that reciprocity was impossible to achieve because the two systems created “unequal rights”.[23]  After this second drawback, there was an avalanche of correspondence in which Spain appeared to be particularly disinclined to sign an agreement. Nevertheless, Howden became particularly incisive and for more than two years he continued his particular crusade.[24] Two projects had become the main concerns of his political agenda: the copyright treaty and the postal convention.[25]  A few weeks before he was removed from his post, he signed both of them.[26]  

 5.  The Treaty

The agreement on the duration of copyright to be enjoyed in each country was the most disputed point during the negotiations.[27] Spanish copyright had recently established a property rule of fifty year protection after the death of the author.[28] In contrast, English copyright had a different copyright duration system organised around the work and not the death of the author and the final outcome was a more limited copyright term. It is no surprise then that the British opted for their national interpretation as the rule of duration. In that sense, British authors were going to achieve more protection than the Spaniards. It seems an elementary point, but the difference became important. In defining reciprocity, the negotiating parties were indeed radically disagreeing. According to the Spaniards, reciprocity meant a fresh term of copyright adopted for both in the treaty by looking at the minimum standard,[29] that is, equal to the term which the British law accorded to a Spanish author in the United Kingdom.[30] The British saw reciprocity in a different manner. What they meant by the term was not “equitable” but “legal” reciprocity: the principle was to give British authors the same reward and protection as the Spanish copyright law awarded to its own authors.[31] The divergence was so striking that it constituted a deadlock, a barrier at which the negotiations stopped during 1855 and 1856.[32]  In January 1857, Howden took new steps to renew the negotiations.[33]  He was then reported to be “with hope” that the Spanish government would give up on this issue.[34] For a few months he continued displaying diplomatic skills by convincing the Spanish Minister of Foreign Affairs, the Marquis of Pidal (1799-1865), of the importance of the treaty.[35] This was the final and decisive attempt and the Spanish government eventually conceded.[36] The clause related to the duration of copyright was signed according to the British draft.[37]  

Although bilateral negotiations, especially when involving negotiating parties from countries using different languages, were often filled with discussions on the regulation to be afforded to translations, this negotiation did not manifest any particular difficulties. A similar treatment to the Franco-Spanish copyright treaty (1853) was accorded.[38]  As a matter of fact, it was similar but not identical. Whereas the copyright treaty signed by the Spaniards with the French had established a ten-year duration rule, the translation right now agreed with the British comprised five years.[39]

Bilateral copyright protection was also associated with formalities. Foreign authors were given three months after publication in Spain or the United Kingdom to register their works and translations in the Stationers Hall and the Spanish Ministry of Public Works (Ministerio de Fomento) respectively.[40] Yet another final rule was also carefully negotiated: the period of time for the convention. Limiting the duration was particularly important for the Marquis of Pidal, who was reported to be “anxious” to sign in order to avoid the opposition of the press. And a short period was also beneficial for both countries in case things did not develop as expected. As countries did not want to compromise the future form of their international relations, the duration of the convention was restricted to six years.[41]

6. References

Archival references

National Archives (Kew)

Archivo Histórico Nacional

Clarendon Papers (Bodleian Library,Oxford)

Howden Papers (Bodleian Library,Oxford)

Bibliographic references 

Alexander, I.  Copyright and the Public Interest in the Nineteenth Century (London: Hart Publishing, 2010) 

Ansorena, L. Tratado de la Propiedad Intelectual en España (Madrid: Sáenz de Jubera Hermanos, 1894; republished in 1911) 

Bellido, J. Copyright in Latin America. Experiences of the Making (1880-1910) (London:University ofLondon, PhD Thesis, 2009) 

Bently, L. and Sherman, B. The Making of Modern Intellectual Property (Cambridge, Cambridge University Press, 1999) 

Dánvila y Collado, M., La Propiedad Intelectual (Madrid: Imprenta de la Correspondencia de España, 1882) 

Documentos internacionales del reinado de doña Isabel II: desde 1842 a 1968 (Madrid: Imprenta de Miguel Ginesta, 1869) 

Erskine Inglis, F., The attaché in Madrid; Or, Sketches of The Court Of Isabella II (New York: Appleton and Company, 1856) 

Fernández, P. “En torno a la edición fraudulenta de impresos españoles en Francia: la convención literaria hispano-francesa (1853)” in Torres Martiìnez, J.C., Garciìa Antoìn, C. and Aguilar PinÞal, F. (coords.) Estudios de literatura española de los siglos XIX y XX: homenaje a Juan María Díez Taboada (Madrid: Consejo Superior de Investigaciones Cientiìficas, CSIC, 1998) pp. 200-209 

Kiernan, V. G. The Revolution of 1854 in Spanish History (Oxford: Oxford University Press, 1966) 

Mellado, F. Discurso sobre la Propiedad Literaria (Madrid: Imprenta del Banco Industrial y Mercantil, 1865) 

Seville, C. The internationalisation of Copyright Law. Books, Buccaneers and the Black Flag in the Nineteenth Century  (Cambridge:CambridgeUniversity Press, 2006) 

Vergara, M. De la Propiedad Literaria (Madrid: Imprenta de Miguel Arcas y Sánchez, 1861) 

Vicente y Caravantes, J. “Exposición y examen de nuestras leyes y tratados sobre la propiedad literaria” Revista General de Legislación y Jurisprudencia, vol. 50, 1877, p. 40; 123; 210. 

Legislación de la Propiedad Literaria en España (Madrid: Librería de Moya y Plaza, 1864)