In response to the failure of U.S. copyright law to protect foreign authors, nineteenth-century American publishers evolved an informal practice called the “courtesy of the trade” as a way to mitigate the public goods problem posed by a large and ever-growing commons of foreign works. Trade courtesy was a shared strategy for regulating potentially destructive competition for these free resources, an informal arrangement among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise unprotected writings and to pay foreign authors legally uncompelled remuneration for the resulting American editions. Courtesy was, in effect, a makeshift copyright regime grounded on unashamed trade collusion and community-based norms.
This Article examines a particular feature of this informal system: the courtesy paratext. Typically appearing in the form of letters or statements by foreign authors, courtesy paratexts prefaced numerous American editions of foreign works published from the 1850s to the 1890s. These paratexts—supplements to the text proper—played a prohibitory role (not unlike the standard copyright notice) and also extolled the regulating and remunerating virtues of the courtesy system. Authorial paratexts continued to accompany texts well into the twentieth century—including, notably, American editions of James Joyce’s and J.R.R. Tolkien’s works—and enable us to observe the principles of courtesy as they operated less overtly to govern American publishers’ treatment of unprotected foreign works. A little-examined source for understanding the history of copyright law and informal publishing norms, courtesy paratexts offer insight into a form of private ordering that rendered the American public domain a paying commons.
69 Stanford Law Review 641 (2017).