Project Gutenberg's International Copyright, by George Haven Putnam
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Title: International Copyright
Considered in some of its Relations to Ethics and Political Economy
Author: George Haven Putnam
Release Date: September 16, 2007 [EBook #22619]
Language: English
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INTERNATIONAL COPYRIGHT
CONSIDERED IN SOME OF ITS RELATIONS TO
ETHICS AND POLITICAL ECONOMY
BY
GEORGE HAVEN PUTNAM
AN ADDRESS DELIVERED JANUARY 29TH, 1878, BEFORE
THE NEW YORK FREE-TRADE CLUB
NEW YORK
G. P. PUTNAM'S SONS
182 FIFTH AVENUE
1879.
COPYRIGHT, 1879, BY G. P. PUTNAM'S SONS.
INTERNATIONAL COPYRIGHT.[1]
[1] A paper read January 29th, 1878, before the New York
Free-Trade Club.
The questions relating to copyright belong naturally to the sphere of
political economy. They have to do with the laws governing production,
and with the principles regulating supply and demand; and they are
directly dependent upon a due determining of the proper functions of
legislation, and of the relations which legislation, having for its
end the welfare of the community as a whole, ought to bear towards
production and trade.
As students of economic science, we recognize the fact that, in all
its phases, it is in reality based upon two or three very simple
propositions, such as:
Two plus two make four.
Two from one you can't.
That which a man has created by his own labor is his own, to do what
he will with, subject only to his proportionate contribution to the
cost of carrying on the organization of the community under the
protection of which his labor has been accomplished, and to the single
limitation that the results of his labor shall not be used to the
detriment of his fellow-men.
It is not in the power of legislators to make or to modify the laws of
trade; it is their business to act in accordance with these laws.
Economic science is, then, but the systematizing, on the basis of a
few generally accepted principles, of the relations of men as regards
their labor and the results of their labor, namely, their property.
There is therefore an essential connection between the systems
governing all these relations, however varied they may be. Soundness
of thought in regard to one group of them leads to soundness of
thought about the others.
Interested as we are in the work of bringing the community to a sound
and logical standard of economic faith and practice, it is important
for us to recognize and to emphasize the essential relations
connecting as well the different _scientific_ positions as the various
sets of _fallacious_ assumptions. Further, we can hardly lay too much
stress upon the oft-repeated dictum that a system may be correct in
theory yet pernicious in practice, maintaining, as we do, that where
the application of a theory brings failure the result is due either to
the unsoundness of the theory or to some blundering in its
application.
We claim, also, that with reference to the rights of labor, property,
and capital, the free-trader is the true protectionist. It is the
free-trader who demands for the laborer the fullest, freest use of
the results of his labor, and for the capitalist the widest scope in
the employment of his capital; and it is he who asserts that the
paternal authority which restricts the workingman in the free exchange
of the products of his craft, which limits the directions and the
methods for the use of capital, appropriates--or, to speak more
strictly, destroys--a portion of the value of the labor and the
capital, and prevents the ownership from being real or complete.
Authors are laborers, and their works are, as fully as is the case
with any other class of laborers, the results of their own productive
faculties and energies.
Literary laborers lay claim, therefore, to the same protection for a
full and free enjoyment of the results of their labors as is demanded
by those who work with their hands and who are in the strict sense of
the term manufacturers. Such enjoyment would include the right to sell
their productions in the open market where they pleased and how they
pleased, and if this right to a free exchange is restricted within
political boundaries, is hampered by artificial obstacles, the author
is not the full owner of his material; a portion of its value has been
taken away from him. In so far as international copyrights have not
been established, this is the position of the author of to-day.
Copyright is defined by Drone in his "Law of Copyright," as "the
exclusive right of the owner to multiply and to dispose of copies of
an intellectual production." It is also used as a synonym for
literary property. Regarding literary property, Drone says:
"There can be no property in a production of the mind unless it
is expressed in a definite form of words. But the property is not
in the words alone; it is in the intellectual creation, which
language is merely a means of expressing and communicating."
Copyright may therefore be said to be the legal recognition of
brain-work as property.
It is akin in its nature to patent-right, which is also but the legal
recognition of the existence of property in an idea, or a group of
ideas, or the form of expression of an idea.
International _patent_-rights have been recognized and carried into
effect much more generally than have copyrights. The patentee of an
improved toothpick would be able to secure to-day a wider recognition
of his right as a creator than is accorded to the author of "Uncle
Tom's Cabin" or of "Adam Bede."
"The existence of literary property," says Drone, "is traced back by
record to 1558, when an entry of copies appears in the register of the
Company of Stationers of London." Between 1558 and 1710 there was no
legislation creating this property or confining ownership, nor any
abridging its perpetuity or restricting its enjoyment. It was
understood, therefore, to owe its existence to common law, and this
conclusion, arrived at by the weightiest authorities, remained
practically unquestioned until 1774. During this earlier period there
were some instances of the recognition of literary property, but the
earliest reported case concerning such property occurred in 1666, in
which the House of Lords unanimously agreed that "a copyright was a
thing acknowledged at common law." A licensing act, passed in
Parliament in 1674, and expiring in 1679, prohibited, under pain of
forfeiture, the printing of any work without the consent of the owner.
But the first act attempting to fully define and protect copyright in
Great Britain was that of 1710, known as the 8th of Anne. It was
entitled "An Act for the Encouragement of Learning," and, declaring
that an author should have the sole right of publishing his book,
prescribed penalties against any who should infringe that right. Its
evident intention was to more clearly establish, and make more easily
defensible, the rights of authors, but curiously enough it had for its
effect a very material limitation of those rights.
It provided, namely, that copyright should be secured to the author or
his assigns for fourteen years, with a privilege of renewal to the
author or his representatives for fourteen years longer. This
privilege of renewal was not conveyed to any one who might have
purchased the author's copyright. It was supposed for a long time that
this statute had not interfered with any rights that authors might
possess at common law, and in the oft-cited case of Millar _vs._
Taylor in 1769, in regard to a reprint of Thomson's "Seasons," a
majority of the judges of the King's Bench (including among them Lord
Mansfield) gave it as their opinion that the act was _not_ intended to
destroy, and had not destroyed, copyright at common law, but had
simply protected it more efficiently during the periods specified. The
opinion delivered by Lord Mansfield, as chief justice of the court,
remains one of the strongest and most conclusive statements of the
property-rights of authors, and has been termed one of the grandest
judgments in English judicial literature. Its conclusion is as
follows:
"Upon the whole, I conclude that upon every principle of reason,
natural justice, morality, and common law; upon the evidence of
the long received opinion of this property appearing in ancient
proceedings and in law cases; upon the clear sense of the
legislature, and the opinions of the greatest lawyers of their
time since that statute--the right (that is in perpetuity) of an
author to the copy of his work appears to be well founded, ...
and I hope the learned and industrious will be permitted from
henceforth not only to reap the same, but the full profits of
their ingenious labors, without interruptions, to the honor and
advantage of themselves and their families."
In 1774, in the case of Donaldson _vs._ Beckett, the House of Lords
decided on an appeal, first, that authors had possessed at common law
the right of copyright in perpetuity, but, secondly, that this right
at common law had been taken away by the statute of Anne, and a term
of years substituted for perpetuity.
Chief among those who, in opposition to this decision, advised the
lords that literary property was not less inviolable than any species
of property known to the law of England, was Sir William Blackstone.
The most important influence in support of the decision was exercised
by the arguments of Justice Yates and Lord Camden. "This judgment,"
says Drone, "has continued to represent the law; but its soundness has
been questioned by very high authorities." In 1851 Lord Campbell
expressed his agreement with the views of Lord Mansfield. In 1854,
Justice Coleridge said: "If there was one subject more than another
upon which the great and varied learning of Lord Mansfield, his
special familiarity with it, and the philosophical turn of his
intellect, could give his judgment peculiar weight, it was this. I
require no higher authority for a position which seems to me in itself
reasonable and just."
In 1841 an important debate took place in Parliament upon this same
issue. The right at common law of ownership in perpetuity was asserted
by Sergeant Talfourd and Lord Mahon, and the opinion that copyright
was the creation of statute law and should be limited to a term of
years was defended by Macaulay.
The conclusions of the latter were accepted by the House, and the act
of 1842, which is still in force, was the result. By this act the term
of copyright was fixed at forty-two years, or if at the end of that
time the author be still living, for the duration of his life.
I have referred to these discussions as to the nature of the
authority through which the author's ownership exists or is created,
as the question will be found to have an important bearing upon
international copyright. In connection with this debate of 1842 was
framed the famous petition of Thomas Hood, which, if it were not
presented to Parliament, certainly deserved to be. It makes a fair
presentment of the author's case, and is worth quoting:
"That your petitioner is the proprietor of certain copyrights
which the law treats as copyhold, but which in justice and
equity, should be his freeholds. He cannot conceive how 'Hood's
Own,' without a change in the title-deeds as well as the title,
can become 'Everybody's Own' hereafter.
"That your petitioner may burn or publish his manuscripts at his
own option, and enjoys a right in and control over his own
productions which no press, now or hereafter, can justly press
out of him.
"That as a landed proprietor does not lose his right to his
estate in perpetuity by throwing open his grounds for the
convenience and gratification of the public, neither ought the
property of an author in his works to be taken from him, unless
all parks become commons.
"That your petitioner, having sundry snug little estates in view,
would not object, after a term, to contribute his private share
to a general scramble, provided the landed and moneyed interests,
as well as the literary interest, were thrown into the heap; but
that in the mean time, the fruits of his brain ought no more to
be cast amongst the public than a Christian woman's apples or a
Jewess' oranges.
"That cheap bread is as desirable and necessary as cheap books;
but it hath not yet been thought just or expedient to ordain
that, after a certain number of crops, all corn-fields shall
become public property.
"That, whereas in other cases long possession is held to affirm a
right to property, it is inconsistent and unjust that a mere
lapse of twenty-eight or any other term of years should deprive
an author at once of principal and interest in his own literary
fund. To be robbed by Time is a sorry encouragement to write for
Futurity!
"That a work which endures for many years must be of a sterling
character, and ought to become national property; but at the
expense of the public, or at any expense save that of the author
or his descendants. It must be an ungrateful generation that, in
its love of 'cheap copies,' can lose all regard for 'the dear
originals.'
"That, whereas, your petitioner has sold sundry of his copyrights
to certain publishers for a sum of money, he does not see how the
public, which is only a larger firm, can justly acquire even a
share in copyright, except by similar means--namely, by purchase
or assignment. That the public having constituted itself by law
the executor and legatee of the author, ought in justice, and
according to practice in other cases, to take to his debts as
well as his literary assets.
"That when your petitioner shall be dead and buried, he might
with as much propriety and decency have his body snatched as his
literary remains.
"That, by the present law, the wisest, virtuousest, discreetest,
best of authors, is tardily rewarded, precisely as a vicious,
seditious, or blasphemous writer is summarily punished--namely,
by the forfeiture of his copyright.
"That, in case of infringement on his copyright, your petitioner
cannot conscientiously or comfortably apply for redress to the
law whilst it sanctions universal piracy hereafter.
"That your petitioner hath two children, who look up to him, not
only as the author of the 'Comic Annual,' but as the author of
their being. That the effect of the law as regards an author is
virtually to disinherit his next of kin, and cut him off with a
book instead of a shilling.
"That your petitioner is very willing to write for posterity on
the lowest terms, and would not object to the long credit; but
that, when his heir shall apply for payment to posterity, he will
be referred back to antiquity.
"That, as a man's hairs belong to his head, so his head should
belong to his heirs; whereas, on the contrary, your petitioner
hath ascertained, by a nice calculation, that one of his
principal copyrights will expire on the same day that his only
son should come of age. The very law of nature protests against
an unnatural law which compels an author to write for anybody's
posterity except his own.
"Finally, whereas it has been urged, 'if an author writes for
posterity, let him look to posterity for his reward,' your
petitioner adopts that very argument, and on its very principle
prays for the adoption of the bill introduced by Mr. Sergeant
Talfourd, seeing that by the present arrangement posterity is
bound to pay everybody or anybody but the true creditor."
In France perpetual copyright was guaranteed from very early times.
The Ordinances of Moulines of 1556, the Declaration of Charles IX. in
1571, and the letters-patent of Henry III. constituted the ancient
legislation on the subject, but the sovereign had a right to refuse
the guarantee whenever he thought desirable. In 1761 the Council of
State continued to a grandson of La Fontaine the privilege that his
grandfather possessed, on condition, however, that he should not
assign it to a bookseller. The Revolution of 1789 modified this
regime, and now copyright is guaranteed to authors and their widows
during their lives, to their children, for twenty years; and if they
leave no children, to their heirs for ten years only. According to
French law, a French subject does not injure his copyright by
publishing his work first in a foreign country. No matter where the
publication takes place, copyright forthwith accrues in France on his
behalf, and on the necessary deposit being effected, its infringement
may be proceeded against in a French court. Moreover, a foreigner
publishing in France will enjoy the same copyright as a native, and
this whether he has previously published in his own or in any other
country or not. In Germany and in Austria copyright continues for the
authors life and for thirty years after his death. The longest term of
copyright is conceded in Italy, where it endures for the life of the
author and forty years, with a second term of forty years, during
which last any one can publish the work upon paying the royalty to the
author or his assigns. The shortest term of copyright exists in
Greece, where it endures for but fifteen years from publication.
In the United States, by the law of 1831, the term is for twenty-eight
years, with the right of renewal to the author, his wife or his
children, for fourteen years further. The renewal must be recorded
within six months before the expiration of the first term of
twenty-eight years.
Drone says:
"In the United States the authorities have been divided not less
than in England regarding the origin and nature of literary
property. Indeed, the doctrines there prevalent have ruled our
courts. In 1834, in the case of Wheaton _vs._ Peters, the same
question came before the Supreme Court, that had been decided by
the Court of King's Bench in 1769, and by the House of Lords in
1774--namely, whether copyright in a published work existed by
common law; and if so, whether it had been taken away by statute.
"The court held that the law had been settled in England to the
effect that the author had no right in a published work excepting
that secured by statute; that there was no common law of the
United States, and that the common law as to copyright had not
been adopted in Pennsylvania, in which State the cause of this
action arose; and that by the copyright statute of 1790, Congress
did not affirm an existing right, but created one. The opinion,
which was delivered by Justice McLean, was concurred in by three
of the judges, and dissented from by two, Justices Thompson and
Baldwin, who defended the positions and recalled the arguments of
Lord Mansfield and Sir William Blackstone. Justice Baldwin said:
'Protection is the avowed and real purpose of the act of 1790.
There is nothing here admitting the construction that a new right
is created ... It is a forced and unreasonable interpretation to
consider it as restricting or abolishing any pre-existing
right!'"
Previous to the act of Congress of 1790, acts securing copyright to
authors for limited terms had been passed in Connecticut and
Massachusetts in 1783, in Virginia in 1785, in New York in 1786, and
in other States at later dates. The statute of 1790 gave copyright for
fourteen years, with a renewal to the author, if living, of fourteen
years further. In 1831 was passed the act of already quoted, and in
1870 the regulation went into effect that a printed title of the work
copyrighted must be filed with the Librarian of Congress before
publication, and two copies of the complete book be delivered within
ten days after publication.
In 1874 it was provided that the form of the copyright notice in books
should read, "Copyright, 18--, by A. B."
The first step towards a recognition of the rights of foreign authors
was taken in 1836 by Prussia, when she prohibited the sale within her
boundaries of any pirated or counterfeited editions of German works.
In 1837 a Copyright Convention was concluded between the different
members of the German Confederation. In 1838 the British Parliament
passed a law to obtain for authors the benefits of international
copyright, and in 1846 England entered into a convention with Prussia,
in 1851 with France and Hanover, in 1854 with Belgium, and between
1854 and 1860 with Holland, Italy, Switzerland, and Spain. Between
1846 and 1861 similar conventions were entered into by France with
Belgium, Germany, Holland, Switzerland, and Italy, and nearly all the
Continental powers have now copyright arrangements with each other. As
far as I have been able to learn, it is not requisite under these
arrangements to have a book separately entered for copyright in each
country. The single entry in the place of first publication is
sufficient to protect the author, and to leave him free to make,
within a specified time, his own arrangements with foreign publishers.
In the general copyright statutes, Parliament made no express
distinction between native and foreign authors. The copyright was
granted "to authors," without any restriction as to nationality. It
has been contended, therefore, by jurists on the one hand that the
privilege must be presumed to have been intended for British subjects
exclusively, and on the other that it of necessity belonged to all
authors, whether native or foreign.
There were, previous to 1854, several conflicting decisions of the
courts on this question. In that year the House of Lords decided, in
the case of Jeffreys _v._ Boosey, that a foreign author, resident
abroad, was not entitled to English copyright.
In 1868 the House of Lords, in the case of Routledge _v._ Low, with
reference to the rights of an American author who was residing in
Canada at the time of the publication of his book in London, declared
that an alien became entitled to English copyright by first publishing
in the United Kingdom, provided he were, at the time of publication,
anywhere within the British dominions. Drone says that "this judgment
has continued to represent the law."
It is certainly the case that for a few years after 1868, as a
consequence of this decision, several American authors whose books
were being published in London, took up a temporary residence in
Canada, which enabled their London publishers to enter the books for
copyright, and to pay the authors an honorarium.
I am not able to quote any decisions that have set aside or modified
the above, but I have been advised by leading London publishers that
the effect of this judgment has in some way been nullified, and that
"Canada copyrights" can no longer be depended upon for protecting
American authors in England.
In the United States copyright can at present be secured only by a
citizen or permanent resident, and there is no regulation to prevent
the use, without remuneration, of the literary property of foreign
authors. The United States is therefore at present the only country
itself possessing a literature of importance, and making a large use
of the literature of the world, which has done nothing to recognize
and protect by law the rights of foreign authors of whose property it
is enjoying the benefit, or to obtain a similar recognition and
protection for its own authors abroad.
It has looked after the rights of the makers of its sewing-machines,
its telephones, and its mouse-traps, but it appears to have entirely
forgotten the makers of its literature. The position taken by our
government in securing for an American author the benefit of the sale
of his works at home, while practically estopping him from obtaining
any advantage from their sales abroad, is somewhat analogous to its
treatment of American ship-owners, who are allowed to pick up all the
freights that offer inland and along the coast, but are forbidden to
earn a single penny on the high seas.
It is not easy to understand the cause of this continued indifference
to the claims of our literary workmen; they do not come into
competition with the Delaware River or with any manufacturing
interests for _subsidies_; they ask simply for _markets_.
It is true that there have been in the history of our country
governments which seemed impatient of the claims of any "literary
fellers;" but the majority of our administrations have shown a fair
respect for such "fellers," and even a readiness to make use of their
services.
The difficulty has really been, however, not with the administrations,
but with the people at large, who have failed to fairly educate
themselves on the subject, or to recognize that an international
copyright was called for not merely on principles of general equity,
but as a matter of simple justice to American authors.
These have suffered, and are suffering from the present state of
things in two ways. In the first place, they lose the royalty on the
sales of their books in Europe, Canada, Australia, etc., that ought to
be secured to them by treaties of copyright reciprocity. These sales
have become, with the growth of American literature, very
considerable, and are each year increasing in importance. Even a
quarter of a century ago there were enough American books whose fame
was world-wide to have rendered a very moderate royalty on their sales
a matter of great importance to their authors and to the community.
"Uncle Tom's Cabin," Irving's "Sketch-Book" and other volumes,
Thompson's "Land and the Book," Warner's "Wide, Wide World," Webster's
Dictionary, James' "Two Years before the Mast," and Peter Parley's
histories are a few random specimens from the earlier list, which is a
great deal longer than might at first be thought.
In an official report of the 25th Congress it was stated that up to
1838 not less than 600 American works had been reprinted in England.
According to the "American Facts" of G.P. Putnam, 382 American books,
acknowledged to be such, were reprinted in Great Britain between 1833
and 1843, while a large amount of American literary material had been
"adapted," or issued under new titles as if they had been original
British works. Among these last he quotes Judge Story's "Law of
Bailments," Everett's "Greek Grammar," Bancroft's Translation of
Heeren's Histories, Dr. Harris' "Natural History," etc., etc.
Secondly, the want of an international copyright has placed American
authors at a disadvantage because it has checked the sales of their
wares at home. Other things being equal, the publisher will, like any
other trader, manufacture such goods as will give him the largest
profit, and as he can sell the most readily.
If he has before him an American novel on which, if he prints it, he
must pay the author a royalty, and an English novel of apparently
equal merit, on which he is not called upon by law to pay anything,
the commercial inducement is on the side of the latter. If, on the
score of patriotism or for some other reason, he may decide in favor
of the former, his neighbor or rival will take the English work, and
will have advantages for underselling him. As a matter of fact, as I
shall specify further on, it is the custom of the leading publishing
houses to make some payment for the English material that they
reprint, but as they secure no legal title to such material, they
cannot, as a rule, pay as much for it as they would for similar
American work. There is also the advantage connected with English
works that they usually come to the American publisher in type, in
convenient form for a rapid examination, and that he can often obtain
some English opinions about them which help him to make up his own
publishing judgment, and are of very material assistance in securing
for the books the favorable attention of the American public. It has
therefore been the case that an American work of fiction has had to be
a good deal better than a similar English work, and more marked in its
attractiveness in order to have anything like the same chance of
success. And what is the case with fiction, is true, though to a less
degree, with books for young folks and works in other departments of
literature. It is to be said, however, that this difference in favor
of English productions has been very much greater in past years than
at present, and is, I think, steadily decreasing.
American writers have, against all disadvantages, forced their books
to the favorable attention, not only of the American but of the
foreign public, and the best work is now fairly secure of a hearing.
But there is no question but what the want of a copyright measure has,
as above explained, operated during the past three quarters of a
century to retard and discourage the growth of American literature,
especially of American fiction, and to prevent American authors from
receiving a fair return for their labor. An international copyright is
the first step towards that long-waited-for "great American novel."
In 1876 a Commission was appointed by the Government of Great Britain
"to make inquiry in regard to the laws and regulations relating to
home, colonial, and international copyright." The Commission was made
fairly representative of the different interests to be considered,
comprising among authors: Earl Stanhope, Louis Mallet, Fitzjames
Stephen, Edward Jenkins, William Smith, Sir Henry Holland, James
Anthony Froude, and Anthony Trollope, and also Sir Julius Benedict for
the composers, Sir Charles Young for the dramatists, Sir John Rose and
Mr. Farrer for colonial interests, and Mr. F. R. Daldy for the
publishers; and it has done its work in the thorough, painstaking way
which is characteristic of the methods of British legislation.
It has collected during the past two years a vast mass of testimony
from various sources, and after full consideration has arrived at a
series of recommendations which it has presented to Parliament, and
which will in all probability be adopted.
It is recommended that the copyright on books, instead of holding for
forty-two years from date of registration, shall endure for the
lifetime of the author and for thirty years thereafter. This is the
arrangement at present existing in Germany, and it has the important
advantage that under it all the copyrights of an author will expire at
the same date.
The Commission further recommends (and this is the recommendation most
important for our subject) that the right of copyright throughout the
British dominions be extended to any author, wherever resident and of
whatever nationality, whose work may first be published within the
British Empire.
With reference to the present relations of British authors with this
country, it uses the following words: "It has been suggested to us
that this country would be justified in taking steps of a retaliatory
character, with a view of enforcing, incidentally, that protection
from the United States which we accord to them. This might be done by
withdrawing from the Americans the privilege of copyright on first
publication in this country. We have, however, come to the conclusion
that, on the highest public grounds of policy and expediency, it is
advisable that our law should be based on correct principles,
irrespectively of the opinions or the policy of other nations. We
admit the propriety of protecting copyright, and it appears to us that
the principle of copyright, if admitted, is of universal application.
We therefore recommend that this country should pursue the policy of
recognizing the author's rights, irrespective of nationality."
Here is a claim for a far-seeing, statesmanlike policy, based upon
principles of wide equity, and planned for the permanent advantage of
literature in England and throughout the world. Contrast with this the
narrow and local views of the following resolutions adopted at a
meeting held in Philadelphia in January, 1872, with reference to
international copyright, at which, if I remember rightly, Mr. Henry
Carey Baird presided;
"I. That thought, unless expressed, is the property of the thinker" (a
pretty safe proposition, as, _until_ expressed, it could hardly incur
any serious risk of being appropriated); "when given to the world, it
is as light, free to all.
"II. As property it can only demand the protection of the municipal
law of the country to which the thinker is subject."
The property which would, if it still existed, most nearly approximate
to such a definition as this is that in _slaves_. Twenty years ago, an
African chattel who was worth $1000 in Charleston became, on slipping
across to the Bermudas, as a piece of property valueless. He had no
longer a market price.
It is this ephemeral kind of ownership, limited by accidental
political boundaries, that our Philadelphia friends are willing to
concede to the work of a man's mind, the productions into which have
been absorbed the grey matter of his brain and perhaps the best part
of his life.
"III. The author of any country, by becoming a citizen of this, and
assuming and performing the duties thereof, can have the same
protection that an American author has."
We have already shown what an exceedingly unprotective and
unremunerative arrangement it is that is accorded to the American
author, and we have yet to find a single one, except perhaps Mr.
Carey, who is satisfied with it.
Why a European author, who has before him, under international
conventions, the markets of his native country and of all the world,
excepting belated America, should be expected to give up these for the
poor half-loaf of protection accorded to his American brother we can
hardly understand.
"IV. The trading of privileges to foreign authors for privileges to be
granted to Americans is not just, because the interests of others than
themselves are sacrificed thereby."
That strikes one as a remarkable sentence to come from Philadelphia.
Here are a number of American manufacturers who ask for a certain very
moderate amount of protection for their productions, and our
Philadelphia friends, filled with an unwonted zeal for the welfare of
the community at large, say, "No; this won't do. Prices would be
higher, and _consumers_ would suffer."
It is evident that this want of practical sympathy with these literary
manufacturers is not due to any lack of interest in the enlightenment
of the community, for the last article says:
"V. Because the good of the whole people and the safety of our
republican institutions demand that books shall not be made too costly
for the multitude by giving the power to foreign authors to fix their
price here as well as abroad."
I think we may well doubt whether education as a whole, including the
important branch of ethics, is advanced by permitting our citizens to
appropriate, without compensation, the labor of others, while through
such appropriation they are also assisting to deprive our own authors
of a portion of their rightful earnings. But apart from that, the
proposition, as stated, proves too much. It is fatal to all copyright
and to all patent-right. If the good of the community and the safety
of our institutions demand that, in order to make books cheap, the
claim to a compensation for the authors must be denied, why should we
continue to pay copyrights to Longfellow and Whittier, or to the
families of Irving and Bryant? The so-called owners of these
copyrights actually have it in their power, in connection with their
publishers, to "fix the prices" of their books in this market. This
monopoly must indeed be pernicious and dangerous when it arouses
Pennsylvania to come to the rescue of oppressed and impoverished
consumers against the exactions of greedy producers, and to raise the
cry of "free books for free men."
There is certainly something refreshing in this zeal for the rights of
the consumer, though we may doubt the equity of its application in
this particular instance; but we can nevertheless hardly be satisfied
to have an utterance like that of these resolutions quoted (as it is
in the last edition of the Encyclopædia Britannica) as "the latest
American views on the subject."
The history of the efforts made in this country to secure
international copyright is not a long one. The attempts have been few,
and have been lacking in organization and in unanimity of opinion, and
they have for the most part been made with but little apparent
expectation of any immediate success. Those interested seem to have
always felt that popular opinion was, on the whole, against them, and
that progress could be hoped for only through the slow process of
building up by education and discussion a more enlightened public
sentiment.
In 1838, after the passing of the first International Copyright Act
in Great Britain, Lord Palmerston invited the American Government to
coöperate in establishing a copyright convention between the two
countries.
In the year previous, Henry Clay, as chairman of a committee on the
subject, had reported to the Senate very strongly in favor of such a
convention, taking the ground that the author's right of property in
his work was similar to that of the inventor in his patent.
This is a logical position for a protectionist, interested in the
rights of labor, to have taken, and the followers of Henry Clay, who
are to-day opposed to any measure of the kind, would do well to bear
in mind this opinion of their ablest leader.
No action was taken in regard to Mr. Clay's report or Lord
Palmerston's proposal.
In 1840 Mr. G. P. Putnam issued in pamphlet form "An Argument in
behalf of International Copyright," the first publication on the
subject in the United States of which I find record. In 1843 Mr.
Putnam obtained the signatures of ninety-seven publishers, printers,
and binders to a petition he had prepared, and which was duly
presented to Congress. It took the broad ground that the absence of an
international copyright was "alike injurious to the business of
publishing and to the best interests of the people at large."
A memorial was presented the same year in opposition to this petition,
setting forth, among other things, that an international copyright
would "prevent the adaptation of English books to American wants." In
the report made by Mr. Baldwin to Congress twenty-five years later, he
remarks that "the mutilation and reconstruction of American books to
suit English wants are common to a shameless extent."
In 1853 the question of a copyright convention with Great Britain was
again under discussion, the measure being favored by Mr. Everett, at
that time Secretary of State. Five of the leading publishing houses in
New York addressed a letter to Mr. Everett in which, while favoring a
convention, they advised--
1st. That the foreign author must be required to register the title of
his work in the United States before its publication abroad.
2d. That the work, to secure protection, must be issued in the United
States within thirty days of its publication abroad; and
3d. That the reprint must be wholly manufactured in the United States.
Shortly afterwards Mr. Carey published his "Letters on International
Copyright," in which he took the ground that the facts and ideas in a
book are the common property of society, and that property in
copyright is indefensible. In 1858 a bill was introduced into the
House of Representatives by Mr. Morris, of Pennsylvania, providing for
international copyright on the basis of an entire remanufacture of the
foreign work and its reissue by an American publisher within thirty
days of the publication abroad. The bill does not appear to have
received any consideration.
In March, 1868, a circular letter headed "Justice to Authors and
Artists," was issued by a Committee composed of G. P. Putnam, Dr. S.
I. Prime, Henry Ivison, James Parton, and Egbert Hazard, calling
together a meeting for the consideration of the subject of
international copyright. The meeting was held on the 9th of April, Mr.
Bryant presiding, and a society was organized under the title of the
"Copyright Association for the Protection and Advancement of
Literature and Art," of which Mr. Bryant was made president and E. C.
Stedman secretary. The primary object of the Association was stated to
be "to promote the enactment of a just and suitable international
copyright law for the benefit of authors and artists in all parts of
the world."
A memorial had been prepared by the above-mentioned Committee to be
presented to Congress, which requested Congress to give its early
attention to the passage of a bill "to secure in all parts of the
world the rights of authors," etc., but which made no recommendations
as to the details of any measure. Of the 153 signatures attached to
this memorial, 101 were those of authors, and 19 of publishers.
In the fall of 1868 Mr. J. D. Baldwin, member of Congress from
Worcester, Mass., reported a bill that had been prepared with the
co-operation of the Executive Committee of the Copyright Association,
which provided, That a foreign work could secure a copyright in this
country provided it was wholly manufactured here and should be issued
for sale by a publisher who was an American citizen. The benefit of
the copyright was also limited to the author and his assigns.
The bill was recommitted to the Joint Committee on the Library, and no
action was taken upon it. The members of this Committee were Senators
E. D. Morgan, of New York, Howe, of Wisconsin, and Fessenden, of
Maine, who were opposed to the measure, and Representatives Baldwin,
of Massachusetts, Pruyn, of New York, and Spalding, of Ohio, who were
in favor of it. The bill was also to have been supported in the House
by Michael C. Kerr, of Indiana. Mr. Baldwin explains that an important
cause for the shelving of the measure without debate was the
impeachment of President Johnson, which was at that time absorbing the
attention of Congress and the country. No general expression of
opinion was therefore elicited upon the question from either Congress
or the people, and in fact the question has never reached such a stage
as to enable such an expression of public opinion to be arrived at.
It is my own belief that if the issue were fairly presented to them,
the American people could be trusted to decide it honestly and wisely.
The active members of the committee of the Copyright Association,
under whose general suggestions this bill of Mr. Baldwin's had been
framed, were Dr. S. Irenæus Prime, George P. Putnam, and James Parton.
Dr. Prime published in _Putnam's Magazine_ in May, 1868, a paper on
the "Right of Copyright," which remains perhaps the most concise and
comprehensive statement of the principles governing the question, and
which sets forth very clearly the necessary connection between Carey's
denial of the right of property in books and Proudhon's claim that all
property is robbery. In 1871 Mr. Cox of New York introduced a bill
which was practically identical with Mr. Baldwin's measure, and which
was also recommitted to the Library Committee. In 1872 the new Library
Committee called upon the publishers and others interested to aid in
framing a bill.
A meeting of the publishers was called in New York, which was attended
by but one firm outside of New York; the majority of the firms present
were in favor of the provisions of Mr. Cox's bill, already referred
to. The report was dissented from by a large minority on the ground
that the bill was in the interests of the publishers rather than that
of the public; that the prohibition of the use of foreign stereotypes
and electrotypes of illustrations was an economic absurdity; and that
an English publishing house could in any case, through an American
partner, retain control of the American market. The report of the
minority was prepared by Mr. Edward Seymour, of Scribner, Armstrong &
Co. During the same week a bill was drafted by Mr. C. A. Bristed,
representing more especially the views of the authors in the
International Copyright Association, which provided simply that "all
rights of property secured to citizens of the United States by
existing copyright laws are hereby secured to the citizens and
subjects of every country the government of which secures reciprocal
rights to the citizens of the United States." The same result as that
aimed at in Mr. Bristed's bill would have been obtained by the
adoption of the recommendation made by Mr. J. A. Morgan in his work on
"The Law of Literature," published in 1876. He suggested that the
present copyright law be amended by simply inserting the word "person"
in place of "citizen," in which case its privileges would at once be
secured to any authors, of whatever nationality, who complied with its
requirements.
A few weeks later the meeting was held in Philadelphia whose
resolutions in opposition to international copyright (which, as we
have shown, were equally forcible against any copyright) we have
already quoted.
These four reports were submitted to the Library Committee of
Congress, together with one or two individual measures, of which the
most noteworthy were those of Harper & Bros., and of John P. Morton,
bookseller, of Louisville.
Messrs. Harper, in a letter presented by their counsel, objected to
any measure of international copyright on the broad ground that it
would "add to the price of books and interfere with the education of
the people." This consideration is of course open to the same
criticism as the Philadelphia platform; it is equally forcible against
any copyright whatever. As Thomas Hood says, "cheap _bread_ is as
desirable and necessary as cheap books," but one does not on that
ground appropriate the farmer's wheat-stacks!
Mr. Morton was in favor of an arrangement that should give to any
dealer the privilege of reprinting a foreign work, provided he would
contract to pay to the author or his representative 10 per cent of the
wholesale price of such work. He advised also that the American market
should be left open to the foreign edition, so that the competition
should be perfectly unrestricted.
The proposition that all dealers who would contract to pay to the
author a royalty (to be fixed by law) should be at liberty to
undertake the publication of a work was at a later date presented to
the British Commission by Mr. Farrer and Sir Henry Holland, first with
reference to home copyright, and secondly as a suggestion for an
international arrangement. In this last shape the writer had the
opportunity, in 1876, of presenting to the Commission some
considerations against it. These will be referred to further on.
A similar suggestion formed the basis of a measure submitted in 1872
by Mr. Elderkin, of New York, to the Library Committee of Congress,
and known afterwards as the Sherman Bill.
In view of the wide diversity of the plans and suggestions presented
to this Committee, there was certainly some ground for the statement
made in his report by the chairman, Senator Lot M. Morrill, of Maine,
that "there was no unanimity of opinion among those interested in the
measure." He maintained, further, that an international copyright was
not called for by reasons of general equity or of constitutional law;
that the adoption of any plan which had been proposed would be of very
doubtful advantage to American authors, and would not only be an
unquestionable and permanent injury to the interests engaged in the
manufacture of books, but a hindrance to the diffusion of knowledge
among the people, and to the cause of American education.
This report closed for the time the consideration of the subject.
The efforts in behalf of international copyright have been always more
or less hampered by the question being confused with that of a
protective tariff.
The strongest opposition to a copyright measure has as a rule come
from the protectionists. Richard Grant White said in 1868: "The
refusal of copyright in the United States to British authors is in
fact, though it is not so avowed, a part of the 'American' protective
system." And again: "With free trade we shall have just international
copyright."
It would be difficult, however, for the protectionists to show logical
grounds for their position. American authors are manufacturers, who are
simply asking, first, that they shall not be undersold in their home
market by goods imported from abroad on which no (ownership) duty has
been paid,--which have, namely, been simply "appropriated;" and
secondly, that the government may facilitate their efforts to secure a
sale for their own goods in foreign markets. These are claims with
which a protectionist who is interested in developing American industry
ought certainly to be in sympathy.
The contingency that troubles him, however, is the possibility that,
if the English author is given the right to sell his books in this
country the copies sold may be to a greater or less extent
manufactured in England, and the business of making these copies may
be lost to American printers, binders, and paper men. He is namely,
much more concerned for the protection of the makers of the _material
casing_ of the book than for that of the author who creates its
essential substance.
It is evidently to the advantage of the consumer, upon whose interests
the Philadelphia resolutions laid so much stress, that the labor of
preparing the editions of his books be economized as much as possible.
The principal portion of the cost of a first edition of a book is the
setting of the type, or, if the work is illustrated, in the setting of
the type and the designing and engraving of the illustrations.
If this first cost of stereotyping and engraving can be divided among
several editions, say one for Great Britain, one for the United
States, and one for Canada and the other colonies, it is evident that
the proportion to be charged to each copy printed is less, and that
the selling price per copy can be smaller, than would be the case if
this first cost has got to be repeated in full for each market.
It is then to the advantage of the consumer that, whatever copyright
arrangement be made, nothing shall stand in the way of foreign
stereotypes and illustrations being duplicated for use here whenever
the foreign edition is in such shape as to render this duplicating an
advantage and a saving in cost.
The few protectionists who have expressed themselves in favor of an
international copyright measure, and some others who have fears as to
our publishing interests being able to hold their own against any open
competition, insist upon the condition that foreign works to obtain
copyright must be wholly remanufactured and republished in this
country.
We have shown how such a condition would, in the majority of cases, be
contrary to the interests of the American consumer, while the British
author is naturally opposed to it because, in increasing materially
the outlay to be incurred by the American publisher in the production
of his edition, it proportionately diminishes the profits or prospects
of profits from which is calculated the remuneration that can be paid
to the author.
The measure of permitting the foreign book to be reprinted by all
dealers who would contract to pay the author a specified royalty has
at first sight something specious and plausible about it. It seems to
be in harmony with the principles of freedom of trade, in which we are
believers. It is, however, directly opposed to those principles;
first, it impairs the freedom of contract, preventing the producer
from making such arrangements for supplying the public as seem best to
him; and secondly, it undertakes, by paternal legislation, to fix the
remuneration that shall be given to the producer for his work, and to
limit the prices at which this work shall be furnished to the
consumer. There is no more equity in the government's undertaking this
limitation of the producer and protection of the consumer in the case
of _books_ than there would be in that of bread or of beef.
Further, such an arrangement would be of benefit to neither the
author, the public, nor the publishers, and would, we believe, make of
international copyright, and of any copyright, a confusing and futile
absurdity.
A British author could hardly obtain much satisfaction from an
arrangement which, while preventing him from having his American
business in the hands of a publishing house selected by himself, and
of whose responsibility he could assure himself, threw open the use of
his property to any dealers who might choose to scramble for it. He
could exercise no control over the style, the shape, or the accuracy
of his American editions; could have no trustworthy information as to
the number of copies the various editions contained; and if he were
tenacious as to the collection of the royalties to which he was
entitled, he would be able in many cases to enforce his claims only
through innumerable lawsuits, and he would find the expenses of the
collection exceed the receipts.
The benefit to the public would be no more apparent. Any gain in the
cheapness of the editions produced would be more than offset by their
unsatisfactoriness: they would, in the majority of cases, be
untrustworthy as to accuracy or completeness, and be hastily and
flimsily manufactured. A great many enterprises, also, desirable in
themselves, and that would be of service to the public, no publisher
could, under such an arrangement, afford to undertake at all, as, if
they proved successful, unscrupulous neighbors would, through rival
editions, reap the benefit of his judgment and his advertising. In
fact, the business of reprinting would fall largely into the hands of
irresponsible parties, from whom no copyright could be collected.
The arguments against a measure of this kind are, in short, the
arguments in favor of international copyright. A very conclusive
statement of the case against the equity or desirability from any
point of view of such an arrangement in regard to home copyright was
made before the British Commission, in 1877, by Herbert Spencer. His
testimony is given in full in the _Popular Science Monthly_ for
November, 1878, and February, 1879.
The recommendation had been made that, for the sake of securing cheap
books for the people, the law should give to all dealers the privilege
of printing an author's books, and should fix a copyright to be paid
to the author that should secure him a "fair profit for his work." Mr.
Spencer objected that--
First. This would be a direct interference with the laws of trade,
under which the author had the right to make his own bargains. Second.
No legislature was competent to determine what was "a fair rate of
profit" for an author. Third. No average royalty could be determined
which could give a fair recompense for the different amounts and kinds
of labor given to the production of different classes of books.
Fourth. If the legislature has the right to fix the profits of the
author, it has an equal right to determine that of his associate in
the publication, the publisher; and if of the publisher, then also of
the printer, binder, and paper-maker, who all have an interest in the
undertaking. Such a right of control would apply with equal force to
manufacturers of other articles of importance to the community, and
would not be in accordance with the present theories of the proper
functions of government. Fifth. If books are to be cheapened by such a
measure, it must be at the expense of some portion of the profits now
going to the authors and publishers; the assumption is that book
producers and distributors do not understand their business, but
require to be instructed by the state how to carry it on, and that the
publishing business alone needs to have its returns regulated by law.
Sixth. The prices of the best books would in many cases, instead of
being lessened, be higher than at present, because the publishers
would require some insurance against the risk of rival editions, and
because they would make their first editions smaller, and the first
cost would have to be divided among a less number of copies. Such
reductions of prices as would be made would be on the flimsier and
more popular literature, and even on this could not be lasting.
Seventh. For the enterprises of the most lasting importance to the
public, requiring considerable investment of time and capital, the
publishers require to be assured of returns from the largest market
possible, and without such security enterprises of this character
could not be undertaken at all. Eighth. Open competition of this kind
would, in the end, result in crushing out the smaller publishers, and
in concentrating the business in the hands of a few houses whose
purses had been long enough to carry them through the long and
unprofitable contests that would certainly be the first effect of such
legislation.
All the considerations adduced by Mr. Spencer have, of course, equal
force with reference to open international publishing, while they may
also be included among the arguments in behalf of international
copyright.
With these views of a veteran writer of books may very properly be
associated the opinions of the experienced publisher, Mr. Wm. H.
Appleton, who, in a letter to the New York _Times_ in 1872, says:
"The first demand of property is for security.... To publish a book in
any real sense--that is, not merely to print it, but to make it well
and widely known--requires much effort and large expenditure, and
these will not be invested in a property which is liable to be
destroyed at any moment. Legal protection would thus put an end to
evil practices, make property secure, business more legitimate, and
give a new vigor to enterprise. Nor can a policy which is unjust to
the author, and works viciously in the trade, be the best for the
public. The publisher can neither afford to make the book so
thoroughly known, nor can he put it at so low a price, as if he could
count upon permanent and undisturbed possession of it. Many valuable
books are not reprinted at all, and therefere are only to be had at
English prices, for the same reason that publishers are cautious about
risking their capital in unprotected property."
The copy-book motto, "Honesty is the best policy," fails often enough
to come true (at least as to material results) in the case of the
individual, simply because his life is not always long enough to give
an opportunity for all the results of his actions to be arrived at.
The community, however, in its longer life, is subject to the full
influence of the certain though sometimes slow-working relations of
cause to effect, relations which, among other things, bring out the
essential connection between economics and ethics, and which show in
the long-run the just method to be the wise method. An enlightened
self-interest finds out the advantage of equity. If the teaching of
history makes anything evident, it is that in the transactions of a
nation, honesty _pays_, even in the narrowest and most selfish sense
of the term, and nothing but honesty can ever pay. Among the many
classes of interests to which this applies international copyright
certainly belongs.
Rejecting the Elderkin-Sherman suggestion of an open market for
republishing as in no way effecting the objects desired; the
Baldwin-Cox plan of giving protection only to books of which the type
had been set and the printing done in this country, as narrow in
principle and uneconomic in practice; and the Bristed-Morgan
proposition to extend the right of copyright without limitation or
restriction, as not giving sufficient consideration to the business
requirements, and as at present impracticable to carry into effect--we
would recommend a measure based upon the suggestion of the British
Commission, coupled with one or two of the provisions that have been
included in the several American schemes:
1. That the title of the foreign work be registered in the United
States simultaneously with its publication abroad.
2. That the work be republished in the United States within six months
of its publication abroad.
3. That for a limited term, say ten years, the stipulation should be
made that the republishing be done by an American citizen.
4. That for the same term of years the copyright protection be given
to those books only that have been printed and bound in this country,
the privilege being accorded of importing foreign stereotypes and
electrotypes of cuts.
5. That, subject to these provisions, the foreign author or his
assigns shall be accorded the same privileges now conceded to an
American author.
I believe that, in the course of time, the general laws of trade would
and ought to so regulate the arrangements for supplying the American
public with books that, if there were no restriction as to the
nationality of the publisher or as to the importation of printed
volumes, the author would select the publishing agent, English or
American, who could serve him to best advantage; and that that agent
would be found to be the man who would prepare for the largest
possible circle of American readers the editions best suited to their
wants.
The foreign author would before long recognize that it was to his
interest to be represented by the publisher who understood the market
most thoroughly and who had the best facilities for supplying it. If
English publishers, settling here, could excel our American houses in
this understanding and in these facilities, they ought to be at
liberty to do so, and it would be for the interest of the public that
no hindrances should be placed in their way.
The experience of our American houses, however, who have had business
with English authors and publishers is that it takes some little time
for them to obtain a clear perception of the requirements of the
American market and of American readers, and of the very material
differences existing between the status here and in Great Britain. And
it would be my fear that, if the copyright were granted at once
without restriction, there would be an interregnum of some years,
during which these authors and publishers were obtaining their
American education, before the American readers could obtain freely
the books they wanted in the editions they were willing to purchase.
Our friends on the other side could not resist the temptation of
experimenting, before providing what was really wanted, as to how long
our market would stand their expensive $7, $5, and $3 editions of
books that we have been accustomed to buy here for $2.50, $2, and $1;
and as a consequence, they would sell books by dozens or hundreds that
ought to be sold by thousands; their authors would receive an
inconsiderable copyright, and the American public would be badly
served and would become indignant.
But if the channels of communication between the English authors and
their American readers were once fairly established, as they would be,
I think, under the arrangements suggested, it would not, I believe, be
possible at a later date to interfere with them, even if all
restrictions were removed. When American readers were buying by
thousands a suitable edition, at a moderate price, of a work by a
standard English author who was himself receiving a good return from
his enlarged sales, this author would be as little likely, at the
expiration of the ten years, to restrict those sales by insisting that
his work should be sold here in the costly and unsuitable English
edition, as to stipulate that it should be sold here in a Russian
translation. It is probable, also, that the including in the measure
of these restrictions, even if but for a limited term of years, would
gain for it some support that would be important for its success. It
seems probable that, if the present conditions of trade are
maintained, American book-makers need not be especially troubled ten
years hence by the competition of books manufactured in England, and
that, if the various duties affecting the manufacture could be
abolished, we could well spare the duty on books themselves.
I can, however, imagine no state of affairs in which it would be
economical or desirable to insist upon two settings of type for a book
designed for different groups of English-speaking readers; and the
more generally this first and most important part of the cost of a
book can be economized by being divided between the two markets, the
greater the advantage in the end to author, public, and publisher.
A proposition will doubtless be made in the course of a year by the
British Government for the appointment of an International Commission
for a fresh consideration of the subject, and our government ought to
prepare for this International Commission by the early appointment of
a Home Commission to give due consideration to the several interests
involved in the question, to collect again the different sets of
opinions, and to harmonize these as far as practicable.
By the time our English friends are ready to talk the matter with us,
we ought to have informed ourselves definitely as to what kind of a
measure is on the whole most desirable, and how much of this it is at
this present time practicable to carry into effect.
There has undoubtedly during the past ten years been a growth of
enlightened public sentiment on the question, but I should still be
indisposed to entrust its settlement to the House of Representatives,
and should suppose that it could probably be handled to best advantage
by the Senate in the shape of a treaty.
It is due to American publishers to explain that, in the absence of an
international copyright, there has grown up among them a custom of
making payments to foreign authors which has become, especially during
the last twenty-five years, a matter of very considerable importance.
Some of the English authors who testified before the British
Commission stated that the payments from the United States for their
books exceeded their receipts in Great Britain. These payments secure
of course to the American publisher no title of any kind to the books.
In some cases they obtain for him the use of advance sheets by means
of which he is able to get his edition printed a week or two in
advance of any unauthorized edition that might be prepared. In many
cases however, payments have been made some time after the publication
of the works, and when there was no longer even the slight advantage
of "advance sheets" to be gained from them.
While the authorization of the English author can convey no title or
means of defence against the interference of rival editions, the
leading publishing houses have, with very inconsiderable exceptions,
respected each others' arrangements with foreign authors, and the
editions announced as published "by arrangement with the author," and
on which payments in lieu of copyright have been duly made, have been
as a rule not interfered with. This understanding among the publishers
goes by the name of "the courtesy of the trade." I think it is safe to
say that it is to-day the exception for an English work of any value
to be published by any reputable house without a fair and often a very
liberal recognition being made of the rights (in equity) of the
author.
In view of the considerable amount of harsh language that has been
expended in England upon our American publishing houses, and the
opinion prevailing in England that the wrong in reprinting is entirely
one-sided, it is in order here to make the claim, which can, I
believe, be fully substantiated, that in respect to the recognition of
the rights of authors unprotected by law, their record has during the
past twenty-five years been in fact better than that of their English
brethren. They have become fully aroused in England to the fact that
American literary material has value and availability, and each year a
larger amount of this material has had the honor of being introduced
to the English public. According to the statistics of 1878, ten per
cent of the works issued in England in that year were American
reprints. The acknowledgments, however, of any rights on the part of
American authors have been few and far between, and the payments but
inconsiderable in amount. The leading English houses would doubtless
very much prefer to follow the American practice of paying for their
reprinted material, but they have not succeeded in establishing any
general understanding similar to our American "courtesy of the trade,"
and books that have been paid for by one house are, in a large number
of cases, promptly reissued in cheaper rival editions by other houses.
It is very evident that, in the face of open and unscrupulous
competition, continued or considerable payments to authors are
difficult to provide for; and the more credit is due to those firms
who have, in the face of this difficulty, kept a good record with
their American authors.
One London publisher in London made a custom for years of sending a
liberal remittance to the author of the "Wide, Wide World" for each
new volume sent to him. But the competition of the unauthorized
editions had proved so sharp that he told me he got no profit from his
purchases, and did not see how he could continue them.
The fate of the author of "Helen's Babies" was still harder. Of his
first book seven editions were issued by different British houses,
aggregating together an enormous sale, from which he received hardly a
penny. For the advance sheets of the sequel to this one firm paid him
£50. But so fierce was the scramble for it among the half dozen or
more publishers who hurried through their reprints from the American
journal in which it was appearing as a serial, that one energetic
house sent it out to the British public minus the concluding chapter,
while another, still more enterprising, had the last chapter of his
edition added by an English hand, and the moral of the story was
entirely transformed.
Of the books of Longfellow, Lowell, Holmes, Mrs. Prentiss, Mark Twain,
Dr. Mayo, Miss Phelps, Miss Alcott, Mrs. Stowe, Bayard Taylor, and
most of our more popular authors, there are, in like manner, various
rival editions, and no one house, however good its intentions, can
afford to make a practice of paying these authors, as its neighbors
cannot be depended upon to respect its arrangements.
On the other hand, the leading English authors, like George Eliot,
Miss Mulock, William Black, R. D. Blackmore, Wilkie Collins, Thomas
Hardy, Mrs. Alexander, Tyndall, Huxley, and very many others, have
received and are receiving liberal payments from their American
publishers, who are accustomed, as I have said, not to interfere with
each others' purchases.
In past years there have been sharp criticisms on the other side of an
American habit of "adapting" and reshaping English books, so that the
authors, in addition to the grievance of receiving no compensation for
their American editions, had the further cause for complaint that
these editions were not trustworthy and did not fairly represent their
productions. It was also charged that English material was
occasionally "annexed" bodily by American authors, without any credit
being given. For both sets of charges there have doubtless been
grounds, but the instances have certainly during the past quarter
century grown very much fewer. Indeed, the last kind of appropriation
would to-day be almost impossible, as the knowledge of English current
literature is so thorough that detection would follow at once.
"Appropriated" material could not be sold. In England, however, while
American literature is, as I have shown, beginning to be appreciated,
it is not yet at all thoroughly known, and there is therefore much
less risk in making use of it. As a matter of fact it has been so made
use of by literary hacks to a considerable extent, and there are some
amusing instances in which the English publishers and English critics
have been imposed upon by material that was _not_ original. Mr.
Randolph, the publisher, relates how he was innocently led to reprint
some essays brought to him by an English friend, which seemed to him
very fresh and original, and which proved to have been taken bodily
from one of Henry Ward Beecher's volumes. Mr. Randolph promptly called
Mr. Beecher's attention to his own felonious conduct, and handed him a
check for the considerable amount due him for copyright on the sales.
A translation by Charlton T. Lewis of Bengel's "Gnomon of the New
Testament" was reprinted in London as the work of "two clergymen of
the Church of England." Mr. Lewis' version was followed verbatim, with
the single exception of the omission of some Latin quotations.
Dr. S. Irenæus Prime had sent to him a volume bearing the name of an
English author, with the inquiry as to whether, in his judgment, it
was likely to prove of interest for American readers. He found he was
hardly in a position to give an impartial answer to the inquiry, as
the book was one of _his own_, for several editions of which the
American public had already shown a hearty appreciation.
These are but incidental examples of one kind of appreciation that has
been accorded to American literary work, which may be complimentary
but can hardly be called satisfactory. I refer to them not because
they can be considered as any legitimate extenuation of similar
American misdeeds, for I do not admit that in questions of equity, the
_tu quoque_ forms any argument or defence. They are worth mentioning
only for the sake of emphasizing to our English friends, what they
have not fairly appreciated, that there are at least two sides to the
evil of the present state of things, and that the demoralization
produced by it has not been confined to our side of the Atlantic.
These instances of misappropriation are not of course fairly
representative of the English publishing or literary fraternity, any
more than similar American instances, which have formed the text of
various English homilies, can be accepted as indicating the standard
of literary and trade morality with us. We Americans simply say for
ourselves that the evils and demoralizing tendencies of the lack of
international agreements are fully recognized by us, and that while
certain conditions of manufacturing have heretofore formed a
troublesome obstacle in the way of the establishing of such agreement,
we are glad to believe that this obstacle is now in a fair way of
being overcome. In the meantime, we claim that, in the absence of law,
our American publishers, especially those of the present generation,
have, of their own free will, given to English authors a large part of
the advantage that a law would have secured to them, and have done
this without any corresponding advantage of protection for
themselves.
We are also fully appreciative of the credit due to such of the
English houses as (in the face of perhaps greater difficulties) have
made similar efforts to do justice to American authors.
One of the not least important results to be looked for from
international copyright is a more effective co-operation in their work
on the part of the publishers of the two great English-speaking
nations. They will find their interest and profit in working together,
and the very great extension that may be expected in the custom of a
joint investment in the production of books for both markets will
bring a very material saving in the first cost, a saving in the
advantage of which authors, publishers, and public will alike share.
It seems probable that the "courtesy of the trade" which has made
possible the present relations between American publishers and foreign
authors is not going to retain its effectiveness. Within the last year
certain "libraries" and "series" have sprung into existence, which
present in cheaply-printed pamphlet form some of the best of recent
English fiction. Those who conduct them reap the advantage of the
literary judgment and foreign connections of the older publishing
houses, and, taking possession of material that has been carefully
selected and liberally paid for, are able to offer it to the public at
prices which are certainly low as compared with those of bound books
that have paid copyright, but are doubtless high enough for
literature that is so cheaply obtained and so cheaply printed.
These enterprises have been carried on by concerns which have not
heretofore dealt in standard fiction, and which are not prepared to
respect the international arrangements or trade courtesies of the
older houses.
To one of the "cheap series" the above remarks do not apply. The
"Franklin Square Library" is published by a house which makes a
practice of paying for its English literary material, and which lays
great stress upon "the courtesy of the trade." It is generally
understood by the trade that this series was planned, not so much as a
publishing investment, as for purposes of self-defence, and that it
would in all probability not be continued after the necessity for
self-defence had passed by. A good many of its numbers include works
for which the usual English payments have been made, and it is very
evident that, in this shape, books so paid for cannot secure a
remunerative sale. It seems safe to conclude, therefore, that their
publication is not, in the literal sense of the term, a _business_
investment, and that the undertaking is not planned to be permanent.
A very considerable business in cheap reprints has also sprung up in
Toronto, from which point are circulated throughout the Western States
cheap editions of English works for the "advance sheets" and "American
market," of which Eastern publishers have paid liberal prices. Some
enterprising Canadian dealers have also taken advantage of the
present confusion between the United States postal and customs
regulations to build up a trade by supplying through the mails
reprints of _American copyright works_, in editions which, being
flimsily printed, and free of charge for copyright, can be sold at
very moderate prices indeed.
It is very evident that, in the face of competition of this kind, the
payments by American publishers to foreign writers of fiction must be
materially diminished, or must cease altogether. These pamphlet series
have, however, done a most important service in pointing out the
absurdity of the present condition of literary property, and in
emphasizing the need of an international copyright law. In connection
with the change in the conditions of book-manufacturing before alluded
to, they may be credited as having influenced a material modification
of opinion on the part of publishers who have in years past opposed an
international copyright as either inexpedient or unnecessary, but who
are now quoted as ready to give their support to any practicable and
equitable measure that may be proposed.
I have endeavored to give in the foregoing pages an outline sketch of
the history and present position of the question of international
copyright, and to briefly indicate some of the relations in which it
stands to ethics and political economy.
We may, I trust, be able, at no very distant period, to look back
upon, as exploded fallacies of an antiquated barbarism, the beliefs
that the material prosperity of a community can be assured by
surrounding it with Chinese walls of restrictions to prevent it from
purchasing in exchange for its own products its neighbors' goods, and
that its moral and mental development can be furthered by the free
exercise of the privilege of appropriating its neighbors' books.
* * * * *
FREE TRADE,
AS PROMOTING PEACE
AND
GOOD WILL AMONG MEN.
_A paper read before the New York Free Trade Club, Feb. 20, 1879,
by Charles L. Brace._
To the moralist, Free Trade is not most of all important as a means of
producing and distributing wealth, (though in that it be the most
efficient) but rather as a portion of that movement of humanity which,
receiving its greatest impulse eighteen centuries ago, has been
steadily ever since removing prejudices, lightening burdens, doing
away with abuses, and bringing together into one, different classes
and peoples and races. Living under the influence of this great humane
impulse, we do not enough remember what effects it has already
accomplished, what slow but permanent victories it has won, and what
it proves itself adapted to win in the centuries to come.
It will better show us what changes await the world in such parts of
its progress as relate to Free Trade, to note, briefly, a few of the
improvement wrought by the spirit of humanity and by right reason in
Europe during the last thousand years.
End of Project Gutenberg's International Copyright, by George Haven Putnam
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