Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1884

Commentary on Bilateral Copyright Treaty between Spain and El Salvador (1884)

Jose Bellido (Birkbeck College,University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramon Casas Valles (Universidad de Barcelona)

 
Please cite as:
Bellido, J., Xalabarder, R. & Casas Valles, R. (2011) ‘Bilateral Copyright Treaty between Spain and El Salvador (1884)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title
2. Abstract
3.  People and Contacts      

4.  Torres Caicedo, cosmopolitan copyright diplomat   

5.  The Treaty: Negotiation and Content

6.  Experiments and political trust

7.  References

1. Full title

Treaty between Spain and El Salvador to protect the property over literary, scientific and artistic works (1884)

 Full title original language

Convenio entre España y El Salvador para garantizar la propiedad de las obras literarias, científicas y artísticas (1884)

 
2. Abstract

Viewed in the broad perspective of international copyright history, the bilateral copyright agreement between Spain and El Salvador (1884) might be dismissed as insignificant. However, if we pay more attention to the circumstances that surrounded it, its importance increases, as the agreements signed by El Salvador in the 1880s constituted experiments for international copyright. They were concluded against the backdrop of the uncertainty that surrounded the multilateral negotiations carried out in Berne. The commentary here attempts to capture the dimension of these agreements and reflects on their negotiations and salient features.

 3.  People and Contacts

As copyright historians often highlight, the celebration of the 1878 international literary congress in Paris was a turning point in the internationalisation of copyright.[i] With the foundation of the Association Litteraire International (ALI, afterwards called ALAI), the first steps towards the Berne Convention for the protection of literary and artistic works (1886) were taken.[ii] However, the passage from the literary congress to the diplomatic convention, from Paris to Berne, still constituted a long period, almost a decade, marked by negotiating experiments and contingencies of different sorts. Not only were national countries hesitant about their position in the negotiations being held in Berne;[iii] the controversy also affected the internal belief on the proper image of international copyright. On the one hand, when the Swiss government housed the diplomatic negotiations,[iv] an opportunity for the multilateral copyright convention emerged.[v] On the other, alongside this prospect, there were still ambitious tendencies that imagined other ways of constituting the international framework. There were indeed commentators and publicists who considered that a network of bilateral agreements was the only manner through which copyright could become truly international.[vi] While histories of international copyright have often focused on the successful model designed and heralded at Berne, as if that type of universal copyright were an inevitable outcome of history, we are here concerned with the overlapping and contingent force woven into the internationalisation of copyright: bilateralism.

Our selection of the bilateral treaty signed by El Salvador and Spain (1884) is justified on different grounds. Firstly, and superficially, it was the first convention on the subject of copyright signed between Spain and a Latin American country. As such, it initiated a long desired portfolio of Spanish copyright agreements with Latin American countries that covered the late nineteenth and the beginning of the twentieth centuries.[vii] Secondly, and perhaps more importantly, bilateral copyright conventions signed by El Salvador (1881-1884) take us straight into the zigzagging character of international copyright. They do so by directing our attention to the intimate relationship El Salvador developed with the internationalisation of copyright. There is a curiosity in that tiny country (and the agreements she signed) that is often overlooked by copyright historians. The Salvadorian diplomatic representative, José María Torres Caicedo (1830-1889),[viii] was not only her diplomat; he also became, almost simultaneously, the president of what was then described as the “potent engine in the amelioration of international copyright”,[ix]  that is, ALAI. The ties, coincidences and connections between ALAI and El Salvador did not end here. Torres Caicedo decided to choose someone to work with him as the secretary for El Salvador in Paris. This was also an unusual move for such a modest country. To a certain extent, we could say that the representative (Torres Caicedo) was selecting another representative. But the unusual character of the move is amplified by the selection itself. The secretary he appointed for El Salvador was the first Secretary General of ALAI, the famous writer Jules Lermina (1839–1915).[x] Both Torres Caicedo and Lermina connected diplomatic posts and professional memberships. And this relationship brought political consequences and negotiating experiments for international copyright.

4.  Torres Caicedo, cosmopolitan copyright diplomat   

When the second international literary congress was celebrated in London (1879), Torres Caicedo was fifty years old.[xi] In events like this, he was the master. Delivering speeches, organising negotiations and preparing toasts had been his main professional occupation for the last two decades. Not only had he used his linguistic fluency (French, English and Spanish) to make people feel at home, he was suited to the job. Personable, hard working and constant, [xii] Caicedo had a special involvement in ALAI. He became so committed that it was usual for the meetings of the executive committee to be held at his office in Paris.[xiii] Torres Caicedo was then a man of influence, well connected, and the presidential position at ALAI made him a celebrity. [xiv] In copyright politics, he was the influential person.[xv] Despite - or precisely because of - his immediacy to the pre-history of the Berne Convention, only a few copyright scholars remember him today.[xvi] In marked contrast with Numa Droz (1844-1899), who became the Swiss copyright diplomat whose more subtle negotiating skills are still acclaimed,[xvii] Caicedo’s name and efforts to make copyright international were quickly and drastically forgotten.[xviii] The oblivion is even more remarkable after reading modern histories of international copyright and comparing them with the accounts of the early 1880s.[xix] Caicedo was there: in meetings and banquets, in talks and negotiations. “He was everywhere!” – reported an amazed observer.[xx] And he was not only there: he was stubbornly obsessed with copyright. Probably no other person was more in contact with the formative moment of international copyright as he was. In his role as “défenseur de la grande cause de la propriété intellectuelle”,[xxi] he unofficially contacted the Swiss legation in Paris to propose that a multilateral copyright meeting be held in Berne[xxii] and he also authored the international copyright draft circulated by the Swiss Government at ALAI’s request.[xxiii] But we can trace still more connections. Not only did he write essays and speeches in favour of copyright; [xxiv] he also negotiated and signed the French-Salvador copyright treaty (1880) and the Spanish-El Salvador copyright treaty (1884), and during this short period of time he organised the ALAI annual congresses in London, Lisbon, and Rome. And more links can be mapped out, for he also carried out negotiations on behalf of El Salvador for a copyright treaty with Britain (1881-1884).[xxv] And, finally, another related event is worth mentioning. As a Salvadorian diplomat, he participated in the negotiations and signed the Convention for Industrial Property (1883). [xxvi]  

The summer of 1879 was quite an anxious time for international copyright. During the last few months, ALAI had been criticising the bilateral copyright conventions France had arranged with foreign countries, as if they had “legitimated” international piracy.[xxvii] The French Foreign Office responded to the accusations. W. H. Waddington (1826-1894), the French Minister of Foreign Affairs, highlighted the enormous importance his department attached “to the defence of those (copyright) interests”, but he argued that the reason for the discontent centred on the difficulties encountered in reaching bilateral agreements.[xxviii] Basically, differences among the laws and compromises between diverging legal traditions often provoked arrangements which were not always as solid as desired. Less than a month after the second literary congress held in London (1879), Torres Caicedo received a plenipotentiary from the Salvadorian Minister of Foreign Affairs.[xxix] The atmosphere seemed propitious. And his scope of action was immense: the plenipotentiary was so broad that it allowed him to negotiate any type of copyright treaty between El Salvador and European countries.[xxx] So he enthusiastically commenced copyright talks with France, Spain and the UK.[xxxi]  When he proceeded to negotiate, he acted like a crusader. He initiated the contacts, insisted upon them and led the way. [xxxii] And yet these negotiations were more atypical than ever. [xxxiii] Unlike other bilateral copyright negotiations, what we see in the archival trail is that El Salvador was not reluctant in any way, but exactly the opposite. Contrary to all expectations, El Salvador began the negotiations. Moreover, she became the ideal platform for ALAI to show that country size and power did not matter in international copyright. By initiating the contacts on behalf of El Salvador, Torres Caicedo and ALAI wanted to illustrate that there were no secondary roles in international copyright. In other words, their aim was to make it clear that every country should be involved.[xxxiv]  El Salvador was also a suitable candidate for demonstrating how easy the making of bilateral copyright agreements could be. But what made the negotiation even more unusual was not only such insistence but also their awkward anticipation to reality. In their attempt to show the cosmopolitan character of copyright, [xxxv] El Salvador was especially appropriate because she did not even have copyright laws.[xxxvi] The arrangement was simple and without complications. Indeed, that tiny country was honoured with two different bilateral copyright agreements with France and Spain even before having enacted its own domestic copyright legislation.[xxxvii] This odd feature made these treaties so special that the only possible way of making sense of them is to view them as enabling acts that were used to press the international copyright issue. They were designed to experiment with the idea of making copyright international.

5.  The Treaty: Negotiation and Content

 The Spanish-Salvadorian copyright negotiations were modelled on the previous copyright treaty Torres Caicedo had negotiated and signed with France in 1880.[xxxviii]  Hardly had the French negotiation finished before he initiated relations with the British on exactly the same basis.[xxxix] And these two diplomatic moves were followed because the French-El Salvador copyright treaty was – he said - considered by analysts as “the most complete” ever made.[xl] His purpose was not simply to negotiate isolated treaties with different countries. As president of ALAI, he wished to follow a process for establishing principles for international copyright relations. And the way of doing so was to take the French-El Salvador copyright treaty as an enabling template for further moves he could make as a diplomat of El Salvador.[xli] He wanted the treaty to be used as a representation of a flowing inertia for international copyright, and he saw the harmonising process flourishing. Nothing more graphically illustrates this institutional vision than the way in which he valued the bilateral treaty between France and El Salvador. Interestingly, his account was not made on the basis of benefits and advantages for the country he was representing (El Salvador) but on the comprehensiveness, the importance and representation of the bilateral treaty as an “international act”. [xlii]  

 We can be even more precise. If ALAI wanted to become an epitome of the world, the presence of countries such as El Salvadorat the centre of international politics contributed to the idea that all countries, irrespective of their size and political importance, could be represented.[xliii] If international copyright was accused of being illusory or impossible, the copyright relations initiated by El Salvador were instrumental in an attempt to mobilise the support other countries. Certainly this was an aggressive tactic, but it cleared the way for presenting bilateral copyright agreements as facts: they provided direct evidence of international copyright being viable. In that specific sense, these copyright conventions were also and importantly strategic performances. They were not simply bilateral copyright agreements: they were seen as marking a historical moment and they were instituted to persuade of the possibility of copyright becoming international.[xliv] They attempted this in an absolute manner.[xlv] The most direct and straightforward way of making copyright international was to assimilate translations into the reproduction right.[xlvi]  Therefore it is no surprise that they were presented as “demonstrations”,[xlvii] for they proved that copyright could become universal.[xlviii] These demonstrations often occurred at the ALAI congresses[xlix] and circulated through its bulletins.[l] Since ALAI insisted on producing a pattern for international copyright agreements, [li] a series of conventions took the French-El Salvador copyright agreement as a model.[lii] The Spain-El Salvador (1884) treaty is an illustration of the emergence of this format characterised by the following ingredients: copyright protection guaranteed without formalities, the original combination of nationality-reciprocity[liii] and the translation right assimilated to the reproduction right.[liv] And its negotiations and ratification (1883-1885) were events that overlapped the meetings held in Berne (1883-1886).[lv]

With the Spaniards, the negotiation of translations was not a problematic issue.[lvi] Translations were totally subjugated to copyright and prohibitions reached all types of adaptations.[lvii] Yet there are other factors that still make this treaty particularly interesting. Its typology was modern in many different ways. For instance, the duration of copyright was set up in the standard modern way. While previous bilateral copyright treaties had considerable problems in finding an agreement as to duration, here we have copyright being standardised to fifty years after the death of the author.[lviii] This morphology became the most typical copyright term for almost a century. Another remarkable feature was the reference in article 1 to authors who were naturales (nationals). As mentioned here, these new treaties arranged in the 1880s were attempting to make copyright truly international. And the way of doing so was to combine nationality and reciprocity. While the most typical formula being used in bilateral agreements before the 1880s was that of granting copyright protection to “authors who meet the legal requirements in one of the contracting states”, that is, without making any reference to their nationality,[lix] these new bilateral treaties began to state nationality or citizenship as one of the defining characters of their copyright subjects. Moreover, another silence of the treaty was the distinction between published and unpublished works. While previous copyright agreements were used to grant different treatments to published and unpublished works, these new formats did not make such a distinction.

The negotiation of the Spanish-El Salvador bilateral copyright treaty was quick and easy: it took less than a year. It was not only Torres Caicedo who insistently worked for that diplomatic copyright relationship to succeed: Spanish diplomats were just as anxious to reach an agreement, and for this reason some typical clauses were missed. For instance, because the diplomats did not pay attention to, or did not want to delay the negotiations, the basis established in the Spanish 1879 copyright law for international agreements was not even fulfilled.[lx] In fact, the most-favoured-nation (MFN) treatment was not included in the agreement. Nor was the time period to denounce the treaty included. Nevertheless, chronicles of the day on which the treaty was signed had a clear idea of who benefited from the signature of the treaty. They reported that “at 2 pm on June 24, 1884 José de Elduayen, The Marquis of the Pazo de la Merced (1823-1898) and Torres Caicedo signed the copyright agreement that was so “important for Spanish authors”.[lxi]

 6.  Experiments and political trust

 During the negotiations of the treaty, Caicedo had expressed his belief that those bilateral copyright agreements could be seen as opportunities to link up and incorporate the rest of the world and especially Latin American countries within the realm of international copyright.[lxii] He imagined those treaties as exemplary constructions, as examples to be followed, to be “imitated”.[lxiii]  To a certain extent, his dream was fulfilled, for they were used and they were followed. For instance, the bilateral copyright convention between El Salvador and Spain served Spanish diplomacy as a platform from which to negotiate with other Latin American countries. It was one of the key instructive communications sent to different diplomats in Latin America.[lxiv]  In particular, the Spanish office strategically used the “text” of this treaty as a springboard for the initiation of contacts with other Latin American countries.[lxv] However, such a use suddenly displayed unexpected problems. The text contained expressions which were difficult to be understood fully in Spanish.[lxvi] After careful examination, it was observed that some of these linguistic controversies were attached to the origin of the text that was – as we have just mentioned - a translation of a previous French copyright bilateral convention also authored by Torres Caicedo. The Spaniards began to be preoccupied by the somewhat loose language perceived in that “model”. Despite these operational problems, its importance was derived from marking a moment when the Foreign Office initiated a series of instructions and documents regarding negotiations of copyright bilateral treaties with Latin American countries.