In November 1881, American
author and humourist Samuel
Clemens (a.k.a. Mark Twain)
traveled from Hartford, Con-
necticut to Montreal for a two-
week visit where he was feted by
the eminent literary and polit-
ical figures of the day. The cul-
mination of his trip was a ban-
quet in his honour organized by
lawyer and poet laureate Louis
Frechette. But Twain had not
come to Canada as part of a
celebrity tour. Rather, as he
explained, he was in Canada to
“place myself under the protec-
tion of the Canadian law and
secure a copyright.”
Nineteenth century copyright
law was complex. As Twain
remarked: “The only thing
impossible to the Almighty was
to find any sense in copyright
laws.” The laws were territorial
and each jurisdiction required
particular formalities for secur-
ing the right. In Canada, this
was exacerbated by Canada’s col-
onial status in that both British
and Canadian copyright laws
applied within the Dominion.
MYRA
TAWFIK
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any of the British Dominions or
colonies, at the time of first publication of their book in the U.K.
An 1868 House of Lords decision had held that a two-week
stay would suffice to meet the
residency requirement. This
explains Twain’s visit to Montreal, and he was successful in
securing a British copyright for
The Prince and the Pauper.
However, a parallel application
for a Canadian copyright was
denied because Canadian law
required domicile in Canada. A
brief sojourn was insufficient.
Sadly for Twain, there was a
significant difference between a
British copyright enforceable in
Canada and a Canadian copyright. Only the latter would protect authors against the importation into Canada of
unauthorized foreign reprints
of their works.
By way of background,
American copyright law
afforded no protection to authors who were not American citizens or permanent residents.
As a result, some American
publishers made a practice of
reprinting British books without permission, and these cheap
reprints flowed into Canada
with impunity. Unable to negotiate a reciprocal treaty with the
U.S., Britain enacted the
Foreign Reprints Act that allowed
these reprints into Canada upon
payment of a duty to benefit
British authors and publishers.
However, this solution
angered Canadian publishers,
who were prohibited by Imperial
legislation from enjoying a similar compulsory licensing scheme.
As a result, some of them gleefully took advantage of loopholes
in the law, as Twain had already
found out in 1876 with the publication of The Adventures of
Tom Sawyer.
Twain had arranged for that
book to be published in the U.S.
and the U.K. simultaneously.
However, delays arose in the
U.S. publication, and this provided the Toronto publishing
firm of Belford Bros. with the
opportunity to reprint Tom Sawyer without permission and sell
it in the U.S. in advance of the
authorized U.S. version. Because
Twain had remained in the U.S.
at the time of the British publication, he did not hold a valid
British copyright to prevent the
reprinting in Canada. Further,
the delay in the U.S. publication
provided a window of opportunity free from American copyright protection.
Twain was not amused: “
Belford Bros., Canadian thieves, are
flooding America with a cheap
pirated edition of Tom Sawyer….
This piracy will cost me $10,000,
and I will spend as much or more
to choke off those pirates…”
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His visit to Montreal in 1881
was in aid of “choking off those
pirates.” He was only partially
successful, as the Belfords were
quick to react to his failure to
secure a Canadian copyright. In
1882, they published an
unauthorized version of The
Prince and the Pauper that they
had printed at a U.S. facility and
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“Delays arose in the
U.S. publication, and
this provided the
Toronto publishing
firm of Belford Bros.
with the opportunity
to reprint Tom Sawyer
without permission
and sell it in the U.S.
in advance of the
authorized U.S.
version.
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imported into Canada as a for-
eign reprint under the Foreign
Reprints Act.
They made no apology for their
actions, stating that: “The action
we have now taken…nullifies in
great measure, the benefit which
Imperial copyright affords...and
this course we feel justified in
adopting, so long as the United
States government refuse [sic] to
accord to British or Colonial
reciprocal legislation, and while
American publishers are free to
flood Canadian markets with
reprints of English books…”
Dismayed and frustrated,
Twain remarked: “Have you ever
read the Dominion copyright
laws? And if so, do you think you
understand them? Undeceive
yourself; it is ten thousand to
one you are mistaken.”
Although Twain considered
them pirates, the Belfords were
in fact mirroring the general
sentiment in Canada. Even
Twain’s authorized Canadian
publisher, Samuel Dawson
observed: “Mr. Clemens is
entitled to sympathy…But then
the Americans have the remedy
in their own hands. The moment
an International Treaty is made
they will come under our Stat-
ute…They cannot hoodwink the
Canadians as they do the Eng-
lish people, and I am sure they
will never get from the Canadian
Parliament anything but recipro-
cal rights.”
As a result of his Canadian
adventure, Twain became an
active lobbyist for changes to
U.S. copyright law and in 1891,
the U.S. finally granted the
reciprocal protection that had
been so bitterly sought. ;
Myra Tawfik is a professor of
law at the University of Windsor,
Faculty of Law with expertise in
intellectual property. She is cur-
rently working on a book on the
19th century origins of Can-
adian copyright law.
