Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1868

Commentary on the Colonial Projection of the Spanish Copyright Laws (1868)

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) ‘Commentary on the Colonial Projection of Spanish Copyright Laws (1855)” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 
1.  Full title

2.  Abstract

3.  Governing Copyright Legislation

4.  International Copyright    

5.  Border Lines & Exhaustions  

6.   Administrative arrangements

7. Commercial Impulses

8.  References

1. Full title

Colonial Projection of the Spanish Literary Property Act (1868)

Full title original language

Extensión a Ultramar de la Ley de Propiedad Literaria (1868)

2. Abstract

Another complex dimension of crucial importance in Spanish copyright history was the status of colonial copyright. Spanish copyright law was built around different competing images and narratives as to the relationship between metropolitan copyright and her colonies. Moreover, the application and international projection of domestic copyright laws were affected by that diverse imagery. Colonial copyright was debated in the parliament, litigated and transacted in many different ways. This commentary outlines the different layers of complexity at stake for the projection (or not) of Spanish copyright laws inCuba, Porto Rico and the Philippine Islands.

3.         Governing Copyright Legislation

When in 1847 parliamentary debates about the Literary Property Act were about to reach a conclusion, the issue of colonial copyright was introduced in the final speech.[1] The question referred to the desirability or not of embracing overseas possessions with metropolitan copyright laws. The emergence of the issue was surely unexpected for most of the deputies: no reference to colonial copyright appeared in the bill being discussed, and colonies did not have parliamentary representation at that time. However, the comment was made by Vázquez Queipo (1804-1893), a deputy who had been engaged in colonial service in Cuba for a decade. He described his intervention as an “attempt to defend what could be more convenient for the overseas provinces”. Although the discussion which began afterwards was brief and perhaps superficial, it illustrated not only the tension around a controversial topic but also a couple of interesting features. That is why this narrative detour through the parliamentary discussions is a suitable way of grasping an understanding of the colonial “problem”. Firstly, when colonial legislation was mentioned in the parliament, constitutional references often emerged. More specifically, and as it occurred after the comment made by Vázquez Queipo, the situation of colonial copyright led to different constitutional interpretations. Two consecutive constitutions in 1837 and 1845 had declared that colonies were going to be governed by “special laws” and the understanding of such statements was contentious.[2]  Retrospectively, we can say that such a constitutional horizon was never fulfilled since no special laws were ever enacted. Nevertheless, some copyright laws were adapted[3] to different colonial circumstances and special intellectual property laws were also drafted.[4] Secondly and surely derived from that constitutional attraction, colonial questions in the parliament had a propensity to be responded to with ruthless assertions of lawgiving and lawmaking power. In the copyright debate, we can perceive this as well. An attempt to close the discussion around the colonial issue was made by another deputy, who harshly repeated twice that any comment about special legislation was out of place because “overseas” laws, if any, were dictated there, at the Spanish Parliament.[5]  

Quarrelsome disputes over the engagement between colonies and the metropolis referred not only to the place from which the binding form could emanate, but also to its real substance. In other words, the issue reflected the clash of powers on decisions as to whether any special laws or any special “arrangements” could be established. As a matter of fact, parliamentary reluctance to deal with the issue meant that the power to extend (or not) metropolitan copyright laws was surprisingly left to the government.[6] And this point is highly significant.[7] As if colonial copyright was not taken as a topic to be directly legislated by the Parliament but to be administered through royal prerogatives, a Royal Order was issued by the Spanish president, Nicomedes Pastor Díaz (1811-1863), to the colonial officials.[8] The order contained a decision to “observe” the Spanish Literary Property Act (1847) in her colonies and overseas possessions.[9] Yet attention should not end here. Having decided to send such an order to colonial territories, the real expansion was not as transparent and straightforward as might be thought. Normative or operational closure was only achieved by different confirming acts and events executed by colonial institutions, the most significant being the publication and promulgation of the copyright law in the official gazettes of those territories.[10] Indeed, when the metropolitan dispatch was received in Cuba, Porto Rico and the Philippines, different issues popped up alongside the communication. The main tension was obviously politico-juridical and refers to the struggle to succeed in governing the issue between metropolitan institutions and colonial officials.  It is no surprise then to see the dispatch order of the 1847 Literary Property Act drowned in an ocean of discussions around whether or not the appropriate communication protocols had been followed.[11] According to colonial officials, multiple problems had peppered it. The order had not followed the appropriate ministerial conduits. Neither had it been sent to the proper addressee, the president of the Reales Audiencias, the main institution of colonial administration until the 1860s.[12]

In between that operational hurdle, the ability of colonial institutions to transform their advisory function into a sort of legislative role did exist. There was a requirement to consult audiencias in Cuba and Puerto Rico in order to trace any inconsistency in the metropolitan copyright law before its application to their new and specific territories.[13] In relation to the 1847 Literary Property Act, the review process lasted for more than eight years and it was not until 1855 that the Cuban Civil Governor finally published the law.[14] A cursory glance at the archival files produced in this decade may illustrate the type of problems originating in the copyright legislative transplantation. In Puerto Rico, for instance, concerns were raised as to the applicability of article 12 of the Literary Property Act.[15] The article grabbed the attention of colonial authorities because it allowed the reproduction of extracts of laws and other dispositions on the basis of fair dealing for criticism and review. Doubts then were elevated as to whether censorship rules would be altered by that article. After some exchange of communications, it was declared that censorship would not be affected. However, the unique selection of such a contentious exception to copyright by Puerto Rican officials is remarkable. That colonial copyright could have had an ambivalent relationship with censorship and surveillance of very specific texts was emphasised by another Royal Order, this one issued in December 1865, in which the desire of controlling the textual validity of laws and amendments was literally connected to the remedies provided by the Literary Property Act.[16] The threat of pirate editions of statutes books showing legal inaccuracies helped copyright to be imagined as a mechanism capable of dealing occasionally with issues of authenticity and official editions rather than with the more common interstices of ownership and original copies.

 4.         International Copyright

 If parliamentary debates staged ephemeral quarrels about the proper place to discuss the projection or not of copyright laws to colonies, the extension of bilateral copyright treaties to overseas territories also provided for another occasion to deal with the colonial “problem”. Yet the controversy was now more complicated, since different regimes (international and colonial) evidenced a tendency to collide. It was at this point, through its encounter with and distinction from the international framework that the full complexity of colonial copyright emerged. But again, such collision was not debated in the parliament but prompted by pressuring contingencies.[17] During the diplomatic negotiations of the bilateral copyright treaty between Spain and France (1853), no reference had been made to Spanish colonies.[18] Neither was the issue discussed during the first decade of the agreement.[19] Despite the fact that the treaty had a reference to its applicability to Spanish “dominions”,[20] it was only and as a result of a private petition that the government began paying attention to this possible extension. The petitioner was a Spanish citizen, Anacleto Sánchez, owner of the publishing company Las Novedades, who had acquired abroad the translation right over French works.[21] A few years later and after losing a trial to assert his rights in La Havana, Cuba, he decided to file a complaint against the Spanish authorities. His first move was an approach to an institution recently opened in Madrid: the colonial office (Ministerio de Ultramar).[22] And he not only demanded that the Franco-Spanish bilateral copyright treaty (1853) should be in force in Cuba but also argued for a transposition with retroactive effect.[23] Between 1865 and 1868, communications on the effect of the treaty in colonial territories circulated within the colonial office (Ministerio de Ultramar), the advisory council (Consejo de Estado), the Ministry of Foreign Affairs (Ministerio de Estado) and colonial institutions such as the Cuban civil Governor.

At face value, the question looked similar to the first scenario we have just described, as the issue was about the possible colonial extension of legislation. Yet a couple of features were totally different. First, the constitution of a colonial office in peninsular Spain, the Ministerio de Ultramar, had changed the institutional framework.[24] The new office attempted to centralise decision-making and it also tried to facilitate communications between institutions. And secondly, the extension was not referring to domestic law now but to the validity of legal dispositions derived from international obligations. Hence France obviously had something to say, and she did.[25] In May 1868, the Cuban civil Governor proposed a series of rules to facilitate the application of the treaties in colonial territories.[26] These rules were approved in Madrid and applied not only in Cuba but also in Puerto Rico and the Philippines.[27] And the French ambassador demanded an explanation that was responded with evasive answers. 

 5.         Border Lines & Exhaustions

International copyright relations affected the core of colonial copyright. While colonial copyright was characterised by territorial limits and social controls, international copyright aimed at opening frontiers for the recognition of foreign copyright. Whereas international copyright relations were made in order to identify a reciprocal basis abroad, colonial copyright attempted to restrict the circulations of works. Not surprisingly, the most typical infringement of copyright overseas was defined in relation to the borders. The boundaries of the intangible were defined with respect to colonial boundaries. And it was precisely the task of controlling the introductions of literary works which became even more complicated after the signing and extension of bilateral copyright treaties. The border had been instituted as the checking point for the classification of works. More specifically, it was the decisive moment at which to discriminate works, taking into account their origin and destiny. After the internationalisation of copyright, this ability to know (and to decide) whether copyright subsisted in one work and not in another became more complex. Spain tried to reduce such decision-making complexity by implementing different measures. First, she named the specific ports through which literary works should be introduced. For instance, literary works could only enter Puerto Rico through the capital and the port of Mayagüez. This was also the case in Cuba (Havana and Santiago) and the Philippines (Manila).[28] By selecting entry routes in a geo-strategic fashion, copyright could be controlled more easily. Secondly, rules on the organisation of the inspection of works functioned as helpful devices with which to consider the works as legal/illegal or authorised/unauthorised. Inspectors were instructed to focus on two identity traces when taking a decision: manufacturing place and language. Infringing works were presumed to be those imported without the proper qualifying requirements. As if the act of introduction became more important than the act of creation for copyright purposes, the border constituted a moment of judgment saturated by international relations. Above all, the most important documentary control on the movement of literary works was the certificate of origin. Certificates served as useful devices as indicators of origin and they became documents that acquired more instrumental importance than the nationality of the author or the place in which the works were published. The certificate was the form to present together with the literary work, and it was crucial because the colonial border constituted a formality-based zone. Compliance of formalities transformed customs into a sort of copyright registry. The difficulty arose as to the extent to which customs officials were ready to perform such an adjudicatory role in copyright. In order to try to regulate the entry requirements, the colonial office was constantly issuing circulars, guidelines and publishing notes in the bulletin in an attempt to instruct inspectors about the rules. It was also enclosing the types of certificates for the officials to identify the correct certificates.

6.         Administrative Arrangements

If the extension of metropolitan laws and its enforcement at the borders were intense zones of conflict in colonial copyright, the place of registry constituted another source of tension. But it was problematic for different reasons.[29] To give an example: the extension of the 1880 copyright rules to colonies was paralysed because of the lack of consensus in the organisation of copyright registries in Cuba or Puerto Rico.[30] For metropolitan institutions, it was clear that there had to be one “central” copyright registry in Madrid. However, colonial institutions suggested a different geography of copyright registries to avoid the costly obligations of sending books from overseas to Spain.[31] The controversy was technical but also, and more importantly, political, for what it was at stake was the distribution of adjudicatory competences in relation to copyright law. The conflict seemed to have been settled with a smart decision of give and take to colonial institutions. While overseas registries were given the status of provincial copyright registries, the colonial office library in Madrid was built from literary works sent from Cuba, Puerto Rico and the Philippines on the basis of different obligations established in the 1847 Literary Property Act[32] and the 1879 Copyright Law.[33]

 7.         Commercial impulses

In a footnote of his treatise on colonial copyright, Francisco Garófalo y Morales referred to the Cuban presence of the French collective society of authors (SACEM) through his agents.[34] Moreover the main impetus for the applicability of bilateral treaties came after the agent of Las Novedades in Cuba failed to secure his property over the translation right.[35] These two examples are reminders of the complex relations that existed in colonial territories. More specifically, it was not only colonial officials who were interested in copyright. It is significant to highlight the emergence of an additional underlying infrastructure of private representatives who were engaged in the exploitation of copyright works throughout these territories.[36] Those agents operating in Spanish colonies were thus connected to copyright entrepreneurs in a network that ran beneath official colonial structures.[37] Some of them not only made profitable transactions, but they also did what colonial officials seemed unable or unwilling to do: to press the copyright issue in overseas territories.[38] In so doing, these agents put pressure on colonial institutions to intervene in the social fabric. They were helped by their principals who simultaneously complained to the central government. Representatives of copyright holders compelled colonial institutions to collect and publish Spanish copyright laws in official publications.[39] Private agents also compelled colonial officials to gather data about theatrical performances.[40] The extension of laws and also their enforcement was required by petitions, complaints and private letters. The effects of such petitions were difficult to predict since they affected the interests of both colonial elites and metropolitan entrepreneurs; interests that could be coincidental or not.[41] However, what it is more interesting about these scenes of private outcry is not actually its outcome but its automatic and tactical repetition on both sides of theAtlantic.

Archives

Archivo Nacional de Cuba- ANC (Cuba)

Archivo Nacional de Filipinas – ANF (Philipinnes)

Archivo General de Puerto Rico – AGPR (Porto Rico)

Archivo del Consejo de Estado – ACE (Spain)

Archivo Histórico Nacional – AHN (Spain)

Archivo General de la Administración – AGA (Spain)

Bibliography

Alvarado, J. Constitucionalismo y codificación en las provincias de Ultramar (Madrid: Centro de Estudios Constitucionales, 2001)

Aguirre Miramón, J. M. “De las leyes especiales de Ultramar y su reforma” Revista General de Legislación y Jurisprudencia, 22 (1863) pp. 20-26.

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

Autos acordados de la Real Audiencia Pretorial de la Habana y demás disposiciones relativas a los funcionarios del orden judicial de la isla de Cuba (Habana: Imprenta del Gobierno, 1856)

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

Garófalo y Morales, F. La propiedad intelectual e industrial. Su legislación en la península y provincias ultramarinas (Habana: La propaganda literaria, 1890)

Escosura, P. “Observaciones al tratado sobre propiedad literaria entre España y Francia” La América. Crónica Hispano-Americana, July 14, 1857, pp. 6-7.

Lorente, M. (ed)  La jurisdicción contencioso-administrativa en España. Una historia de sus orígenes (Madrid: Cuadernos de Derecho Judicial; VII – 2009)

Nombela, J. Impresiones y Recuerdos (Madrid: Tebas, 1976) 

Recopilación de las leyes de los reinos de Indias (1680).

Sánchez Andrés, A. El Ministerio de Ultramar. Una institución liberal para el gobierno de las colonias, 1863-1899 (Gran Canaria: Centro de la Cultura Popular Canaria, 2008)

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