Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1898

Commentary on US-Spanish Peace Treaty (1898)

José Bellido (Birkbeck College, University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramón Casas Vallès (Universidad de Barcelona)

 
Please cite as:
Bellido, J., Xalabarder, R. & Casas Vallès, R. (2011) ‘Commentary on US-Spanish Peace Treaty (1898)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title

2. Abstract

3.  The negotiation of the Treaty (1898)

4.  Focusing on the detail: the Copyright Clause  

5.  Copyright Law in Cuba, Porto Rico & the Philippine Islands 

6.  References

1. Full title

 Tratado de Paz celebrado entre España y los Estados Unidos de América en 10 de Diciembre de 1898

 2. Abstract

The Treaty of Paris (1898) is one of the most important historical documents not only for the study of Spanish copyright history but also for the understanding of the birth of modern copyright law in post-colonial territories such as Cuba, Puerto Rico and the Philippines. The commentary here focuses on one aspect of the negotiation of the Treaty, namely the history of its thirteenth provision, the copyright clause. The goal is to identify the moment of its emergence in the negotiation of the treaty. The intricacies of the implementation of copyright law in these territories during the last years of the nineteenth century and the first decade of the twentieth century are also briefly dealt with.

2.  The negotiation of the Treaty

The point of departure, naturally, is the war. The primordial scene opens with the United States militarily defeating Spain in what Spaniards still remember as the “disaster” of 1898.[1]  The territorial consequences are well-known. Spain lost her last colonies: Cuba, Puerto Rico, the island of Guam and the Philippines. Much has been written about the history of the US-Spanish war (1898) and also about the famous distinction between “living” and “decaying” nations, as originally coined by Lord Salisbury at the Albert Hall. But even now, comparatively little is known about the final negotiation, the one that produces its endpoint: the treaty of peace.[2]  The treaty is important for us because it is a reminder that international copyright developed in a multifaceted and complex picture of international relations.[3] It is an extraordinary specimen of copyright being negotiated in an awkward manner, neither multilaterally nor truly bilaterally. But first, let us briefly introduce the making of the treaty. Certain protocols for achieving that final document had been already established.  Broadly speaking, the mechanism for the conflict resolution shifted from French mediation to face-to-face negotiation.[4] The last part of the process was handled by national commissions appointed in order to conclude the desired treaty.[5]

From October to December 1898, North American and Spanish representatives met in Paris, presented various memorandums and submitted different peace proposals.[6] Their aim was identical: to reach an agreement. However, their standing was different. In these scenarios, the initial scene is always influential. If one country had already inflicted a military defeat on another, it is clear that no equal negotiating position could be generated.[7] There might have been, of course, other causes of inequality. For instance, some commentators and journalists considered the diplomatic skills of the Spaniards to be disastrous.[8] One of the accusations focused on the lack of command of English of Eugenio Montero Ríos (1832-1914), the head of the Spanish commission; this was viewed as an example of an embarrassing diplomatic representation.[9] Such criticism affected him to the extent that years later he wrote a book devoted to the negotiations suggesting that there had not been sufficient room for manoeuvre.[10]  He recalled that, with the handicap of military defeat, the Spaniards faced many obstacles in succeeding. Indeed, he claimed that the negotiations were often threatened by the renewal of hostilities.[11] Stifled by what they perceived as ultimatums issued by the North American envoys and embedded in disillusioned sentiments spread around in Spain, the Spaniards could raise only a few matters. Although constraints and difficulties plagued the negotiation process, Montero Ríos still identified the copyright issue as one of the minor but significant achievements of the Spanish strategy, as the Spanish commission had an interest “in saving those rights and interests and it providentially achieved a franchise for ten years”.[12]

 3.  Focusing on the Detail: The Copyright Clause  

On 24 September 1898, an official announcement was released in the Spanish official gazette to “explore the public spirit” before the opening of the peace negotiations in Paris.[13]  The stated aim of the call was to identify the interests of chambers of commerce, business centres and other Spanish associations in the territories where Spain was about to lose sovereignty. It was an anxious call, a desperate need from the Spanish government to identify “data, news and reports” tied to a clear destiny: the necessity of adapting them to the new “order of things” to come. Five days later, a number of requests were received. Among them were petitions for securing Spanish copyright in the territories.[14] Although there were many diverse issues, that the legal safeguarding of copyright was selected, inserted and isolated in such turbulent times makes us aware of the increasing importance that the topic was acquiring as a key foreign affair even for a “decaying” nation like Spain. Yet there was not only one request for copyright to be protected; the measure was also demanded by two different Spanish associations that independently communicated their expectations to the Ministry of Foreign Affairs.[15] Their fears and anxieties specifically referred to the money pouring out of the collection of dramatic copyright in Cuba and Porto Rico.[16] And their concerns and desires were among those taken into account by the Spanish government.

Consequently, the two requests were part of the instructions communicated to the Spanish envoys, and they elevated the issue of copyright at a key moment in the negotiations.[17] No better moment could have been chosen: just when the main sovereignty and politically charged issues had been discussed, just when the North American commissioners felt that they had also defeated Spain politically at the negotiating table, just when the treaty had “almost” been finalised and, more specifically, just when all negotiators were exhausted. The strategy worked beautifully for the Spaniards. With an overall desire to conclude the agreement as soon as possible, the Spanish commission then focused the attention on copyright. Following the archival trail, we can say that the move should not have come as a complete surprise to the North American commission. They had also speculated that copyright could be targeted. However, there was a slight difference in the way in which they imagined the basis of that engagement. It seems that the North Americans thought that the would-be topic of discussion was going to be the future state of copyright vis-à-vis the United States and Spain.[18] In contrast, the Spanish regulatory mind was looking at the future of copyright not between the United States and Spain, but between Spain and her former colonies. In fact, from the first draft of the clause, the Spaniards pointed in that direction. The draft required future protection of copyright and patents acquired by Spaniards in Cuba, Puerto Rico and the Philippines. And it specified that Spanish literary and artistic works “shall continue to be admitted free of duty into such territories for twenty-five years”.[19]   

The Spaniards were insistent and incisive.[20] Their strategy had been to prepare an internal memo anticipating a variety of ways of presenting the commercial and copyright clauses depending on the contingency of the most important issue of the negotiations, that is, the political future of Cuba, Puerto Rico and the Philippines.[21] When the North American commissioners perceived the Spanish insistence on including the copyright issue in Cuba, Puerto Rico and the Philippines in the treaty, they rapidly inquired about the current state of copyright in those territories.[22] An answer came from John W. Griggs, US Attorney General, and consisted of advice to wait for the Treaty of Peace to be signed.[23]  The negotiations were happily closed a few days later and the Treaty was signed on 10 December 1898.[24]  Its article thirteen recognised the temporary protection of copyright and patents already acquired by Spaniards in Cuba, Puerto Rico, the Philippines and other ceded territories.[25]

5.  Copyright Law in Cuba, Puerto Rico & the Philippines 

Copyright relations between the United States and Spain had been suspended during the war, for copyright was ruled under the principle of belligerent right.[26]  Before the hostilities, relations had been established by an “exchange of notes” and a “declaration” that took place in 1895.[27]  The exchange of notes was a diplomatic device which was quite useful for extending copyright protection, as it not only avoided negotiations but also parliamentary approvals.[28] A few years later, exactly the same framework was renewed.[29]  On the ground, a sort of unofficial restoration seemed to have already been produced and works by Spanish nationals began to be registered at the American copyright office from the end of the war.[30] This reciprocal copyright situation became steady and consistent throughout the twentieth century. But we cannot say the same for those territories affected by the truce.  Whereas Spain and the United States rapidly normalised their copyright relations after the Treaty of Peace (1898) by bringing to life the former arrangement,[31] Cuba, Puerto Rico and the Philippines encountered considerable difficulties in establishing a suitable normative basis with which to enhance their copyright relations.[32]

Difficulties in finding a normative basis for copyright began early. The strange scenario ensuing in both Cuba and Puerto Rico is particularly illuminating. When the issue of international copyright law was at the peak of its formative moment, the application of the Treaty of Paris became particularly difficult and another issue not discussed in Paris suddenly and unexpectedly became important: the consequences of the Spanish signature at the Berne Convention (1886).[33]  The question was whether the change of sovereignty had made the adherence to the Union of the previous Spanish colonies void or voidable.[34]  And not even the Union established at Berne had an answer to that question.[35] It was a moment of expectation, and countries such as Italy and France were particularly interested in the international position Cuba and Puerto Rico were about to take.[36] Obviously the situation in Puerto Rico became quite abnormal. For the United States – as we all know- did not sign the Berne Convention (1886) until quite recently. Cuba presented another anomaly and the Union tried to solve it by inviting her again to participate in the international framework. However, she rejected the invitation.[37] In the meantime, the US Military Government of Cuba had issued an Order in 1900 extending the scope of the thirteenth article of the Treaty of Paris (1898) to “foreigners”. And even more surprisingly, it had established the 1879 Spanish Copyright Law as the copyright law in force in Cuba.[38]  After such an astonishing decision, more than seven regulatory instruments were issued in just two years in a desperate attempt to clarify the functioning of copyright law in Cuba after 1898.[39]  A different but complicated legislative transition was also experienced in Puerto Rico. On 28 June 1899, the US Secretary of State in Puerto Rico issued a circular reminding the need to respect Spanish copyright on the grounds of the Treaty of Paris.[40] And surprisingly again, a situation of co-existence of two different copyright systems emerged after 1898. This anomaly continued to be in force until 1976.[41] Finally, and according to a well-known American copyright commentator, the situation in the Philippines was even more problematic because there had not been “legislation that directly or indirectly extend[ed] the copyright laws of United States to the inhabitants of those islands”.[42]

6. References

 Archival Sources

Archivo del Ministerio de Asuntos Exteriores, Spain (AMAE)

Foreign Relations United States (FRUS)

Archivo General de Puerto Rico (AGPR)

Bibliographical references

 Barrio Jala, M. “El Tratado de París” Revista de Historia Militar, año XLII, número 85, 1998.

 Bellido, J. “Latin American and Spanish Copyright Relations (1880–1904)” Journal of World Intellectual Property Law, 2009, pp. 1-39

 Bellido, J. "Colonial copyright extensions: Spain at the Berne Convention (1883-1899)" 58 Journal of the Copyright Society of the USA (2011) 243

 Castillo y Soriano, J. Memoria en celebración de las Bodas de Oro de la Asociación de Escritores y Artistas Españoles, 1872-1922 (Madrid: Angel Acoy, 1923)

 Díaz González, F. J. “Estudio histórico-jurídico de los tratados de liquidación del Imperio español de Ultramar: el Tratado de París de 10 de diciembre de 1898 y el de Madrid de 30 de junio de 1899” Anuario de la Facultad de Derecho de la Universidad de Alcalá, 2005, p. 36-51

 Fitz-Gerald, J. “Copyright relations between Spain and the United States” Hispania, vol. 7, n. 2, March 1924, pp. 129-136

 Foner, P. S. The Spanish-Cuban-American War and the Birth of American Imperialism, 2 vols. (New York: Monthly Review Press, 1973) 

 García Lllanso, A. Manual de la Propiedad Intelectual (Barcelona: Tipografía Luis Tasso, 1901)

 García Llanso, A. El Museo-Biblioteca de Ultramar (Barcelona: Tipolitografía de Luis Tasso, 1897)

  González Hontoria, M. Los convenios de propiedad intelectual entre España y los países iberoamericanos (Madrid: T. Minuesa de los Ríos, 1899)

 Informes de la Asociación de la Prensa de Cuba sobre el convenio relativo a la protección de la propiedad literaria y artística entre las Repúblicas de Cuba y Francia y sobre la invitación dirigida al Gobierno de la República de Cuba por el Presidente de la Confederación Suiza para que la primera se adhiera á la Unión Internacional Protectora de la Propiedad Literaria y Artística (Habana: Imprenta Avisador Comercial, 1904)

 Jover, J. M. 1898, Teoría y práctica de la redistribución colonial (Madrid : Fundación Universitaria Española, 1979)

 Memoria de los Actos y Tareas de la Asociación de Escritores y Artistas Españoles durante el año 1898 (Madrid: Viuda e Hijos de M. Tello, 1899)

 Ministère des Affaires Étrangères. Documents Diplomatiques. Négociations pour la Paix entre L’Espagne et les États-Unis (Paris: Imprimerie Nationale, 1898)

 Montero Ríos, E. El Tratado de Paris: conferencias pronunciadas en el círculo de la Unión mercantil en los dias 22, 24 y 27 de febrero de 1904 (Madrid: R. Velasco, 1904)

 Porpetta, A. Escritores y Artistas Españoles (Historia de una Asociación Centenaria) (Madrid: Asociación de Escritores y Artistas Españoles, 1986)

 Ríos, C. Bases para un Tratado entre las Repúblicas Americanas y España (Buenos Aires: Jacobo Peuser, 1905)

 Pedro G. Salazar, Protección Legal del Autor Puertorriqueño (San Juan: Editorial de la Universidad de Puerto Rico, 1999)

 Solberg, T. (comp) Directions for the Registration of Copyrights under the Laws of the United States (Washington: Library of Congress, Government Printing Office, 1900)

 Solberg, T. (comp) Copyright Enactments of the United States 1783-1906 (Washington: Library of Congress, Government Printing Office, 1906)

 Trask, D. F. The War with Spain in 1898 (New York, London, Macmillan, 1981)

 Tuñón de Lara, M. La quiebra de 1898 (Madrid: Sarpe, 1986)