Copyright and the Modernist Archive: James Joyce’s Correspondence at Antwerp

This blog post is about an institution of modernism that is quite different from the ones that Lawrence Rainey examined in his groundbreaking book, Institutions of Modernism: Literary Elites and Public Culture. His subjects were patronage, collecting, speculation, investment, little magazines, and deluxe editions—institutions that marked modernism’s “tactical retreat” into a “counter-space securing a momentary respite from a public realm increasingly degraded [by mass media and market values], even as it entailed a fatal compromise with precisely that degradation.”[1] This retreat was an ambivalent one, the response of a divided economic self that wished to participate in consumer culture without wholly surrendering itself to the assaults of commodification. The institutions that Rainey explored were private or semi-private formations: limited editions aimed at collectors and professionals; uncompromising periodicals purchased by the discerning few; the private markets, poised uncertainly between gifting and purchasing, that patrons built for rendering material aid to creators and, sometimes, for trafficking in their creations.

Copyright and its laws were also an institution of modernism, but copyright has always been viewed as an adjunct of public markets, a means of incentivizing creative production and rewarding and protecting published works. Copyright operates openly in the commodified space of public culture. Historically and structurally, it has been the public alternative to private patronage. Patronage could offer incentives and rewards for creativity, but it could do nothing about piracy and freeriding once creations had been made available to the public.

Copyright is not as vivid as a patron’s gift; often it gives authors only the uncertain prospect of royalties, a gray expectancy stretching out over years. Royalty payments are mediated, discounted gifts; they convert consumers into micro-patrons. And yet the micro-patronage secured by copyrights can be a welcome boon to popular authors. In 1760—fifty years after Parliament had enacted the first copyright statute[2]—Oliver Goldsmith declared that “[English poets] have now no other patrons but the public . . . a good and a generous master.”[3] Nearly a century later, Charles Dickens, who was a beneficiary of mass literacy on both sides of the Atlantic, toasted “the great compact phalanx of the people” as the true benefactors of literature, in contrast to “individual patrons—sometimes munificent, often sordid, always few.”[4]

Modernism was contemporaneous with a growth spurt in copyright laws, when major revisions of statutes in the United States (1909) and Britain (1911) secured longer, stronger rights for many authors.[5] Yet modernism’s copyrights, viewed from a transatlantic perspective, were often porous and precarious. The United States had only recently extended copyright protection to non-US authors, and this protection was conditioned on compliance with onerous rules, notably the statutory command that works be typeset, printed, and bound on American soil within a few months after their publication abroad in order to acquire US copyrights.

Foreign authors could not always satisfy these protectionist requirements, especially when their writings were thought too experimental, too indecent, or too unpopular to warrant the costs or legal risks of reprinting in America. Many noted modernist works lacked US copyright for failure to comply with the law’s manufacturing clause: the Paris edition of James Joyce’s Ulysses; English editions of Virginia Woolf’s The Voyage Out and Night and Day; D. H. Lawrence’s Sons and Lovers and Lady Chatterley’s Lover; Ezra Pound’s early volumes of poetry issued in London; and many others. Lawful pirates—to use an oxymoronic but accurate phrase—were quick to pounce on unprotected works in the United States. Samuel Roth, the New York pirate-pornographer, was prominent among these reviled reprinters, but he was not alone.[6]

Copyright was thus a hybrid institution of transatlantic modernism, a composite of protection and public domain. Modernism’s commons was often a forced and premature one, especially in the United States. In this respect, copyright was, for many non-US authors, an elusive, even illusory property right. Yet by mid-century, American law had begun to make changes that would benefit foreign authors; and in the 1990s, the US Congress adopted laws that restored copyright for many modernist works, including copyrights lost to the pitiless manufacturing clause.

In addition, the 1990s saw the passage of legislation that lengthened existing and future copyrights by twenty years in both the United States and the European Union. These controversial extensions had the effect of postponing the public domain for modernism by two decades. In some cases, works that had recently entered EU public domains—works by Woolf, Joyce, Yeats, Ford Madox Ford, Havelock Ellis, and others—were restored to copyright in the European Union. If transatlantic modernism had at first suffered from an unstable blend of commons and copyright, by the end of the century many modernist works enjoyed restored and extended copyrights on both sides of the Atlantic. Copyrights that had once been nonexistent or questionable were now guaranteed to endure for nearly a century or longer.

Many works of modernism are thus practically unique as forms of literary property. Whereas copyrights normally exist first and then, after a specified term, expire, many modernist works made the opposite journey, from public domain to copyright, in the course of a few decades. Commons first, then copyright: what a strange legal itinerary! And what a remarkable relationship these works had to the reading and purchasing public, what Dickens called “the great compact phalanx of the people.” Works that at one time had been issued in affordable copies by lawful pirates were later recaptured as exclusive property for authors or their estates; the public that had paid the pirate’s often discounted price were now required to pay above-market premiums for a restored monopoly—a strange economic itinerary.

The works of J. R. R. Tolkien illustrate this transition from commons to copyright. The doubtful US copyright of The Lord of the Rings—due in part to questionable compliance with the law’s manufacturing clause—led to unauthorized but lawful American reprints of the trilogy in the 1960s. Tolkien’s authorized publisher responded with a competing paperback, and the public soon had a choice of handy editions selling for less than a dollar per copy. As sales to college students soared, a loyal following developed for Middle-earth that later, after Congress restored Tolkien’s copyrights in the 1990s, helped his estate and its licensees to earn billions of dollars from protected movies, video games, and merchandise. Tolkien’s popularity had been sown by the American public domain; the profits were reaped by restored monopolies.

Now, let’s put the institution of copyright together with the modernist archive. Modernism is still an inhabitant of libraries, archives, and private collections. Letters, manuscripts, journals, diaries, photographs, and other artifacts of modernism’s productive moment are held in repositories, awaiting their public début in print or digitized formats. Modernism actually exists in at least two archives: published and unpublished. The unpublished archive has not yet fully joined the published one to offer the possibility of a complete, or more complete, picture of the period. In this respect, modernism can’t really be thought of as a concluded historical moment. Its moment of production has passed; its moment of emergence is still very much with us. Copyright’s long monopolies have uncannily prolonged the history of modernism far beyond any canonical estimate of the movement’s endpoint; copyright has been both formative and inhibitive of modernism’s productive life and its archival afterlife.

But how quickly will submerged modernism emerge, and what are the obstacles to its emergence? One obstacle is copyright. If copyright initially played a role in encouraging the creation of modernist works—this is, after all, the classic incentive theory of intellectual property[7]—it now often plays a role in retarding the emergence of modernism from the unpublished archive. Permissions from estates are not always forthcoming. Sometimes, rights-holders can’t be found or don’t respond to requests—this is the “orphan works” problem.[8] At other times, heirs who own copyrights distrust or dislike scholarship or fail to understand what scholars do. Still other estates treat ancestral copyrights as if they were family jewels, a phenomenon I’ve called the heirloom fallacy.[9] It’s related, perhaps, to what behavioral economists call the endowment effect.[10] These sentimental copyright-hoarders generate irrational markets that further inhibit the growth of published modernism.

One of the most spectacularly disagreeable estates in the past few decades has been the estate of James Joyce, controlled until recently by his grandson, Stephen James Joyce (1932–2020). The estate has brandished its copyrights as a weapon for defending the “privacy” of Joyce and his mostly deceased family, and has regularly threatened scholars, denied their requests to quote or adapt, and—even when permission was tendered—often demanded prohibitive fees.[11]

Two things checked the Joyce estate’s aggressions. The first was a federal lawsuit brought against it by the Stanford Fair Use Project and several lawyers (myself included) on behalf of a literature professor at Stanford University.[12] The second was the growth of the public domain, as copyrights in Joyce’s works began to expire around the world, especially at the end of 2011, seventy years after his death. At that time, copyrights in editions of Joyce’s works that had been published during his lifetime expired in most of the European Union, and copyrights in his unpublished writings expired in the United States and most of the European Union. At last, the long-awaited thaw had begun, following the twenty-year freeze imposed during the 1990s.

But the thaw was not total or consistent. Certain published works—Finnegans Wake, for example—that had entered EU public domains remained in copyright, and still do, in the United States, where copyright laws are not fully harmonized with those of other countries. Spain has a copyright term of the author’s life plus eighty years for authors of Joyce’s vintage, in contrast to most of the European Union, where seventy years postmortem is the prevailing term. Most anomalously, the United Kingdom keeps unpublished works by Joyce and other earlier authors in copyright until the end of 2039. Though efforts have been made to repeal or modify this eccentric 2039 rule, there has been no success to date. Brexit has changed nothing here.

The truth is that there is no such thing as a global public domain. Inconsistent national copyright laws have created what I call an uncoordinated public domain, a patchwork commons.[13] We can speak of the world’s evolving public domains—plural—but a unified commons for modernism won’t exist for a long time. The transition from modernism’s unpublished archive to its published archive will remain a work-in-progress for decades to come. This also means that copyright owners, increasingly distant from the life of modernism’s production, will continue to play an outsized role in the afterlife of modernism. Owners can permit modernism to come forth from the archives, or they can erect obstacles.

Some owners have been cooperative. Samuel Beckett authorized the editing of his unpublished letters decades ago. The Willa Cather Trust is willing to work with scholars to permit reasonable quotation and reproduction from her copyrighted writings. But others have been difficult or impossible. Paul Zukofsky, the son of the poet Louis Zukofsky, became what one scholar called “the arch-bridge troll of literary executors.”[14] Representatives of the estates of Marianne Moore and T. S. Eliot were, at one time at least, extremely protective of those authors’ works and reputations, and they used copyrights to patrol the borders of acceptability.

Projects can thrive when copyright owners grant permission. Permission is a magic carpet that allows scholars to fly above the irregularities of the global commons. But when permission is denied or unavailable, a project must negotiate, in the manner of a land vehicle, the rugged, pitted terrain of the public domain. Special perils lie in wait for online digital projects, which can be accessed in any country where the internet is available, sometimes in possible violation of local copyright laws. James Joyce’s Correspondence—an online resource that will eventually make all of Joyce’s unpublished letters available in annotated form—has received, as of this writing, no permission from the Joyce estate. The project relies on the possibilities of the uncoordinated public domain. It’s a wholly law-enabled project.

Until recently, scholars have had to make do with a limited published archive of Joyce’s letters, contained chiefly in volumes issued in 1957, 1966, 1975, and 1987. Significant collections of Joyce’s correspondence have come to light since then, in the British Library, Yale’s Beinecke Library, the National Library of Ireland, the New York Public Library, the University of Texas at Austin’s Harry Ransom Center, and other archives. With the expiration of copyright in Joyce’s unpublished writings after 2011 throughout much of the world, this correspondence—some 2,000 letters, postcards, and other items—became available for publication in many countries.

James Joyce’s Correspondence, hosted at the University of Antwerp, is a free-to-use, open-access, online edition made possible under the copyright laws of Belgium and many other countries. Initially led by William S. Brockman, Kevin Dettmar, the late Michael Groden, and myself, the project has expanded to include additional scholars: Sabrina Alonso, Josip Batinić, Ronan Crowley, and Dirk Van Hulle.

The project’s first release, in June 2021, contained eighty-seven letters, cards, and telegrams written by Joyce (or at his direction or dictation) to Ezra Pound and Pound’s wife between 1915 and 1938. I supplied the annotations and a substantial introduction to these materials.[15] In February 2022, a second release, edited and annotated by Sabrina Alonso and Bill Brockman, contained seven letters by Joyce to Claud W. Sykes and twenty-two letters to Paul Ruggiero. This is a start, but only a start. Some 1,900 known letters remain to be added.

Lacking the Joyce estate’s blessing, James Joyce’s Correspondence relies on the great permission-giver: the public domain. The project has been digitally constructed to take account of the uncoordinated global commons; we lawfully adhere to the current possibilities and limitations imposed by national laws of copyright. The project’s geo-blocking technology permits access in countries where Joyce’s unpublished letters are in the public domain and prevents access where copyrights in the letters subsist. Our project is a negative image, as it were, of the patchwork commons: countries to which we grant access reflect the absence of copyright in Joyce’s letters; countries that are blocked indicate copyright’s presence.

Fortunately, geo-blocked countries are few. Our project currently blocks the United Kingdom, where the 2039 rule remains in effect. We also block Australia, where the law governing unpublished works contains some ambiguities. James Joyce’s Correspondence remains alert, however, to opportunities to unblock countries. In January 2022, we lifted our ban on Spain when its anomalous copyright term—eighty years postmortem—expired for Joyce’s writings, allowing his unpublished letters to join the public domains of the rest of the European Union. Should the United Kingdom repeal or modify its 2039 rule, our project will respond accordingly. James Joyce’s Correspondence is a barometer of the changing pressure of global copyright.

Our project is also aware of its own copyrights. We claim copyright in our editorial apparatus: introductions, annotations, and similar material. But we are careful to state that reasonable quotation from this material may be made, without our permission, under provisions for fair use and fair dealing in national copyright laws. Nor do we do seek to control any new copyrights that might arise in our texts of Joyce’s letters. Because an unfortunate EU law[16] allows us to claim new copyrights in Joyce’s letter texts within the European Union, we expressly grant a general Creative Commons (“CC”) License to copy, distribute, display, and perform the letter texts on condition that users do not assert their own rights in the letter texts or prohibit or discourage others from making CC-Licensed use of those texts.[17] We disapprove of efforts to rebuild the ancien régime of restriction on the ruins of expired copyrights.

James Joyce’s Correspondence is both a record of Joyce’s modernism and a faithful recorder of the evolving modernist archive. As the institution of modernist copyright changes, the project will come to embody those changes, in both its substance and its form. As the institution of the global commons gradually eclipses copyright, modernism’s published archive will grow, and the shape of modernism will change in ways we can scarcely imagine.

Notes

[1] Lawrence Rainey, Institutions of Modernism: Literary Elites and Public Culture (New Haven, CT: Yale University Press, 1998), 5

[2] Statute of Anne, 8 Anne, c. 19 (1710). https://avalon.law.yale.edu/18th_century/anne_1710.asp.

[3] Oliver Goldsmith, Letters from a Citizen of the World to His Friends in the East (London: Charles Knight & Co., 184), 172.

[4] The Speeches of Charles Dickens, 1841–1870, ed. Richard Herne Shepherd (London: Chatto & Windus, 1884), 140–41. Rainey began his book with Dickens’s toast to the micro-patronage of the people (Institutions of Modernism, 1–2).

[5] For the U.K. Copyright Act 1911, see https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/contents/enacted. For the US Copyright Act of 1909, see https://www.copyright.gov/history/1909act.pdf.

[6] For a full discussion of copyright and modernism, see Robert Spoo, Without Copyrights: Piracy, Publishing, and the Public Domain (New York: Oxford University Press, 2013).

[7] See Christopher Jon Sprigman, “Copyright and Creative Incentives: What We Know (and Don’t),” Houston Law Review 55 (2017): 451–78.

[8] Register of Copyrights, “Orphan Works and Mass Digitization,” US Copyright Office (June 2015). https://www.copyright.gov/orphan/reports/orphan-works2015.pdf.

[9] Robert Spoo, “Copyrights and ‘Design-Around’ Scholarship,” James Joyce Quarterly 44 (2007): 564–68.

[10] Russell B. Korobkin, “The Endowment Effect and Legal Analysis,” Northwestern University Law Review 97 (2003): 1227–91.

[11] See Matthew Rimmer, “Bloomsday: Copyright Estates and Cultural Festivals,” Script-ed 2 (2005): 383–428; Robert Spoo, “Three Myths for Aging Copyrights: Tithonus, Dorian Gray, Ulysses,” Cardozo Arts & Entertainment Law Journal 31 (2012): 77–111.

[12] See Shloss v. Sweeney, 515 F. Supp. 2d 1068 (2007); “Shloss settles with Joyce Estate,” Stanford Report, March 26, 2007. See also Spoo, “Three Myths for Aging Copyrights,” 89–105.

[13] See Robert Spoo, “The Uncoordinated Public Domain,” Cardozo Arts & Entertainment Law Journal 35 (2016): 107–151.

[14] “Paul Zukofsky, Prodigy Who Became, Uneasily, a Virtuoso Violinist, Dies at 73,” New York Times, June 20, 2017.

[15] Robert Spoo, “James Joyce’s Letters to Ezra Pound: Alliances, Patronage, and Gifting.” https://jamesjoycecorrespondence.org/FM_02.xml?tab=0.

[16] Council Directive 93/98/EEC, art. 4, 1990 O.J. (L 290) 9 (EC). https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01993L0098-20010622.

[17] James Joyce’s Correspondence, Copyrights and Permissions page: https://joyceletters.uantwerpen.be/exist/apps/jjletters/FM_04.xml?tab=0.