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| author | Roger Frank <rfrank@pglaf.org> | 2025-10-15 01:53:15 -0700 |
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| committer | Roger Frank <rfrank@pglaf.org> | 2025-10-15 01:53:15 -0700 |
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diff --git a/22619-h/22619-h.htm b/22619-h/22619-h.htm new file mode 100644 index 0000000..138bd2a --- /dev/null +++ b/22619-h/22619-h.htm @@ -0,0 +1,1968 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> + +<html xmlns="http://www.w3.org/1999/xhtml"> +<head> + <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1" /> + <title> + The Project Gutenberg eBook of International Copyright, by George Haven Putnam. + </title> + <style type="text/css"> + /*<![CDATA[ XML blockout */ + + <!-- + body {margin-left: 10%; margin-right: 10%;} + p {margin-top: 1em; + margin-bottom: 0em; + line-height: 1.4em; + text-align: justify;} + /* Text Blocks ------------------------------------------ */ + blockquote {text-align: justify; font-size: 0.9em;} + .blockquot {margin-left: 5%; margin-right: 10%;} + pre {font-size: 0.9em;} + div.trans-note { + margin: 10%; + padding: 0.25em; + font-size: 0.9em; + background-color: #E6F0F0; + color: inherit; + } + /* Headers ---------------------------------------------- */ + h1,h2,h3,h4,h5,h6 {text-align: center; clear: both;} + /* Horizontal Rules ------------------------------------- */ + hr {width: 65%; + margin-left: auto; margin-right: auto; + margin-top: 2.0em; margin-bottom: 2.0em; + clear: both;} + hr.full {width: 100%;} + hr.short {width: 20%;} + hr.tiny {width: 10%;} + hr.tight {margin-top: 1.0em; margin-bottom: 1.0em;} + /* General Formatting ----------------------------------- */ + .sc {font-variant: small-caps;} + .smcap {font-variant: small-caps;} + .allsc {font-variant: small-caps; text-transform: lowercase;} + .spacious {letter-spacing: 0.25em;} + span.pagenum {position: absolute; + right: 1%; + color: gray; background-color: inherit; + letter-spacing:normal; + text-indent: 0em; text-align:right; + font-style: normal; + font-variant:normal; + font-weight: normal; + font-size: 8pt;} + p.center {text-align: center;} + p.heading {text-align: center; font-weight: bold;} + p.ellipsis {text-align:center; font-weight: bold; + letter-spacing: 1em;} + .super {font-size: smaller; + vertical-align: 2px;} + sup {vertical-align: 0.25em;} + .center {text-align: center;} + /* Footnotes -------------------------------------------- */ + .footnotes {border: none;} + .footnote .label {float:left; text-align:left; width:2em;} + .fnanchor {font-size: 70%; text-decoration: none; + font-style: normal; font-variant:normal; + font-weight: normal; vertical-align: 0.25em;} + .footnote {font-size: 0.9em; margin-left: 10%; margin-right: 10%;} + /* Links ------------------------------------------------ */ + a:link {color: blue; background-color: inherit; text-decoration: none} + link {color: blue; background-color: inherit; text-decoration: none} + a:visited {color: blue; background-color: inherit; text-decoration: none} + a:hover {color: red; background-color: inherit} + --> + /* XML end ]]>*/ + </style> +</head> +<body> + + +<pre> + +Project Gutenberg's International Copyright, by George Haven Putnam + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +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 + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL COPYRIGHT *** + + + + +Produced by A www.PGDP.net Volunteer, Dave Morgan, Richard +J. Shiffer and the Online Distributed Proofreading Team +at http://www.pgdp.net + + + + + + +</pre> + + +<div class="trans-note"> +<p class="heading">Transcriber's Note</p> +<p>Every effort has been made to replicate this text as +faithfully as possible, including obsolete and variant spellings and other +inconsistencies.</p> +</div> + +<h1 class="sc">International Copyright</h1> + +<br /> +<h3>CONSIDERED IN SOME OF ITS RELATIONS TO<br /> +ETHICS AND POLITICAL ECONOMY</h3> + +<br /> +<h5>BY</h5> + +<h3>GEORGE HAVEN PUTNAM</h3> + +<br /> +<h4>AN ADDRESS DELIVERED JANUARY 29<span class="sc">th</span>, 1878, BEFORE<br /> +THE NEW YORK FREE-TRADE CLUB</h4> + +<br /> +<br /> +<h3>NEW YORK<br /> +<span class="spacious">G. P. PUTNAM'S SONS</span><br /> +182 <span class="sc">Fifth Avenue</span><br /> +1879.</h3> + +<br /> +<h4 class="sc">Copyright, 1879, by G. P. Putnam's Sons.</h4> + + +<hr /> +<p><span class='pagenum'><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> +<h2>INTERNATIONAL COPYRIGHT.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></h2> + +<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> A paper read January 29th, 1878, before the New York +Free-Trade Club.</p></div> + +<p>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.</p> + +<p>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:</p> + +<p>Two plus two make four.</p> + +<p>Two from one you can't.</p> + +<p>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<span class='pagenum'><a name="Page_2" id="Page_2">[Pg 2]</a></span> +detriment of his fellow-men.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>scientific</i> positions as the various +sets of <i>fallacious</i> 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.</p> + +<p>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<span class='pagenum'><a name="Page_3" id="Page_3">[Pg 3]</a></span> +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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."<span class='pagenum'><a name="Page_4" id="Page_4">[Pg 4]</a></span> It is also used as a synonym for +literary property. Regarding literary property, Drone says:</p> + +<blockquote><p>"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."</p></blockquote> + +<p>Copyright may therefore be said to be the legal recognition of +brain-work as property.</p> + +<p>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.</p> + +<p>International <i>patent</i>-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."</p> + +<p>"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 <span class='pagenum'><a name="Page_5" id="Page_5">[Pg 5]</a></span>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.</p> + +<p>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 <i>vs.</i> +Taylor in 1769, in regard to a reprint of Thomson's "Seasons," a +majority of the <span class='pagenum'><a name="Page_6" id="Page_6">[Pg 6]</a></span>judges of the King's Bench (including among them Lord +Mansfield) gave it as their opinion that the act was <i>not</i> 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:</p> + +<blockquote><p>"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."</p></blockquote> + +<p>In 1774, in the case of Donaldson <i>vs.</i> 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.</p> + +<p>Chief among those who, in opposition to this decision, <span class='pagenum'><a name="Page_7" id="Page_7">[Pg 7]</a></span>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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>I have referred to these discussions as to the nature <span class='pagenum'><a name="Page_8" id="Page_8">[Pg 8]</a></span>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:</p> + +<blockquote><p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"That cheap bread is as desirable and necessary as cheap books; +but it hath not yet been thought just or expedient to <span class='pagenum'><a name="Page_9" id="Page_9">[Pg 9]</a></span>ordain +that, after a certain number of crops, all corn-fields shall +become public property.</p> + +<p>"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!</p> + +<p>"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.'</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"That your petitioner hath two children, who look up to <span class='pagenum'><a name="Page_10" id="Page_10">[Pg 10]</a></span>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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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."</p></blockquote> + +<p>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, <span class='pagenum'><a name="Page_11" id="Page_11">[Pg 11]</a></span>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.</p> + +<p>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.</p> + +<p>Drone says:</p> + +<blockquote><p>"In the United States the authorities have been divided not less<span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span> +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 <i>vs.</i> 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.</p> + +<p>"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!'"</p></blockquote> + +<p>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 <span class='pagenum'><a name="Page_13" id="Page_13">[Pg 13]</a></span>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.</p> + +<p>In 1874 it was provided that the form of the copyright notice in books +should read, "Copyright, 18—, by A. B."</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_14" id="Page_14">[Pg 14]</a></span>free to make, +within a specified time, his own arrangements with foreign publishers.</p> + +<p>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.</p> + +<p>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 <i>v.</i> Boosey, that a foreign author, resident +abroad, was not entitled to English copyright.</p> + +<p>In 1868 the House of Lords, in the case of Routledge <i>v.</i> 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."</p> + +<p>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, <span class='pagenum'><a name="Page_15" id="Page_15">[Pg 15]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_16" id="Page_16">[Pg 16]</a></span>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.</p> + +<p>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 <i>subsidies</i>; they ask simply for <i>markets</i>.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_17" id="Page_17">[Pg 17]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_18" id="Page_18">[Pg 18]</a></span></p> + +<p>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 <span class='pagenum'><a name="Page_19" id="Page_19">[Pg 19]</a></span>in favor +of English productions has been very much greater in past years than +at present, and is, I think, steadily decreasing.</p> + +<p>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."</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_20" id="Page_20">[Pg 20]</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 +<span class='pagenum'><a name="Page_21" id="Page_21">[Pg 21]</a></span>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."</p> + +<p>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;</p> + +<p>"I. That thought, unless expressed, is the property of the thinker" (a +pretty safe proposition, as, <i>until</i> expressed, it could hardly incur +any serious risk of being appropriated); "when given to the world, it +is as light, free to all.</p> + +<p>"II. As property it can only demand the protection of the municipal +law of the country to which the thinker is subject."</p> + +<p>The property which would, if it still existed, most nearly approximate +to such a definition as this is that in <i>slaves</i>. Twenty years ago, an +African chattel who was worth $1000 in Charleston became, on slipping +across <span class='pagenum'><a name="Page_22" id="Page_22">[Pg 22]</a></span>to the Bermudas, as a piece of property valueless. He had no +longer a market price.</p> + +<p>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.</p> + +<p>"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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>"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."</p> + +<p>That strikes one as a remarkable sentence to come <span class='pagenum'><a name="Page_23" id="Page_23">[Pg 23]</a></span>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 <i>consumers</i> would suffer."</p> + +<p>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:</p> + +<p>"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."</p> + +<p>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<span class='pagenum'><a name="Page_24" id="Page_24">[Pg 24]</a></span> 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."</p> + +<p>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."</p> + +<p>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.</p> + +<p>In 1838, after the passing of the first International<span class='pagenum'><a name="Page_25" id="Page_25">[Pg 25]</a></span> Copyright Act +in Great Britain, Lord Palmerston invited the American Government to +coöperate in establishing a copyright convention between the two +countries.</p> + +<p>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.</p> + +<p>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.</p> + +<p>No action was taken in regard to Mr. Clay's report or Lord +Palmerston's proposal.</p> + +<p>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."</p> + +<p>A memorial was presented the same year in opposition to this petition, +setting forth, among other things, that an international copyright +would "prevent the <span class='pagenum'><a name="Page_26" id="Page_26">[Pg 26]</a></span>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."</p> + +<p>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—</p> + +<p>1st. That the foreign author must be required to register the title of +his work in the United States before its publication abroad.</p> + +<p>2d. That the work, to secure protection, must be issued in the United +States within thirty days of its publication abroad; and</p> + +<p>3d. That the reprint must be wholly manufactured in the United States.</p> + +<p>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 <span class='pagenum'><a name="Page_27" id="Page_27">[Pg 27]</a></span>of the publication abroad. The bill does not appear to have +received any consideration.</p> + +<p>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."</p> + +<p>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.</p> + +<p>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<span class='pagenum'><a name="Page_28" id="Page_28">[Pg 28]</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The active members of the committee of the Copyright Association, +under whose general suggestions this <span class='pagenum'><a name="Page_29" id="Page_29">[Pg 29]</a></span>bill of Mr. Baldwin's had been +framed, were Dr. S. Irenæus Prime, George P. Putnam, and James Parton. +Dr. Prime published in <i>Putnam's Magazine</i> 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.</p> + +<p>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.<span class='pagenum'><a name="Page_30" id="Page_30">[Pg 30]</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_31" id="Page_31">[Pg 31]</a></span>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 <i>bread</i> is as +desirable and necessary as cheap books," but one does not on that +ground appropriate the farmer's wheat-stacks!</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_32" id="Page_32">[Pg 32]</a></span></p> + +<p>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.</p> + +<p>This report closed for the time the consideration of the subject.</p> + +<p>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.</p> + +<p>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."</p> + +<p>It would be difficult, however, for the protectionists <span class='pagenum'><a name="Page_33" id="Page_33">[Pg 33]</a></span>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.</p> + +<p>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 <i>material +casing</i> of the book than for that of the author who creates its +essential substance.</p> + +<p>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.</p> + +<p>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.</p> + +<p>If this first cost of stereotyping and engraving can be <span class='pagenum'><a name="Page_34" id="Page_34">[Pg 34]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_35" id="Page_35">[Pg 35]</a></span></p> + +<p>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 <i>books</i> than there would be in that of bread or of beef.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_36" id="Page_36">[Pg 36]</a></span>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.</p> + +<p>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.</p> + +<p>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.<span class='pagenum'><a name="Page_37" id="Page_37">[Pg 37]</a></span> His +testimony is given in full in the <i>Popular Science Monthly</i> for +November, 1878, and February, 1879.</p> + +<p>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—</p> + +<p>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 <span class='pagenum'><a name="Page_38" id="Page_38">[Pg 38]</a></span>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.</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_39" id="Page_39">[Pg 39]</a></span></p> + +<p>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 <i>Times</i> in 1872, says:</p> + +<p>"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."</p> + +<p>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 <span class='pagenum'><a name="Page_40" id="Page_40">[Pg 40]</a></span>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 <i>pays</i>, 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.</p> + +<p>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:</p> + +<p>1. That the title of the foreign work be registered in the United +States simultaneously with its publication abroad.</p><p><span class='pagenum'><a name="Page_41" id="Page_41">[Pg 41]</a></span></p> + +<p>2. That the work be republished in the United States within six months +of its publication abroad.</p> + +<p>3. That for a limited term, say ten years, the stipulation should be +made that the republishing be done by an American citizen.</p> + +<p>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.</p> + +<p>5. That, subject to these provisions, the foreign author or his +assigns shall be accorded the same privileges now conceded to an +American author.</p> + +<p>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.</p> + +<p>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, <span class='pagenum'><a name="Page_42" id="Page_42">[Pg 42]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>But if the channels of communication between the<span class='pagenum'><a name="Page_43" id="Page_43">[Pg 43]</a></span> 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.</p> + +<p>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 <span class='pagenum'><a name="Page_44" id="Page_44">[Pg 44]</a></span>markets, the +greater the advantage in the end to author, public, and publisher.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_45" id="Page_45">[Pg 45]</a></span>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.</p> + +<p>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.</p> + +<p>In view of the considerable amount of harsh language that has been +expended in England upon our American <span class='pagenum'><a name="Page_46" id="Page_46">[Pg 46]</a></span>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.</p><p><span class='pagenum'><a name="Page_47" id="Page_47">[Pg 47]</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p><p><span class='pagenum'><a name="Page_48" id="Page_48">[Pg 48]</a></span></p> + +<p>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.</p> + +<p>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, <span class='pagenum'><a name="Page_49" id="Page_49">[Pg 49]</a></span>and there are some +amusing instances in which the English publishers and English critics +have been imposed upon by material that was <i>not</i> 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.</p> + +<p>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.</p> + +<p>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 <i>his own</i>, for several editions of which the +American public had already shown a hearty appreciation.</p> + +<p>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 <span class='pagenum'><a name="Page_50" id="Page_50">[Pg 50]</a></span>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 +<i>tu quoque</i> 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.</p><p><span class='pagenum'><a name="Page_51" id="Page_51">[Pg 51]</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <span class='pagenum'><a name="Page_52" id="Page_52">[Pg 52]</a></span>doubtless high enough for +literature that is so cheaply obtained and so cheaply printed.</p> + +<p>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.</p> + +<p>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 <i>business</i> +investment, and that the undertaking is not planned to be permanent.</p> + +<p>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 <span class='pagenum'><a name="Page_53" id="Page_53">[Pg 53]</a></span>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 <i>American copyright works</i>, in editions which, being +flimsily printed, and free of charge for copyright, can be sold at +very moderate prices indeed.</p> + +<p>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.</p> + +<p>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.</p> + +<p>We may, I trust, be able, at no very distant period, to look back +upon, as exploded fallacies of an antiquated <span class='pagenum'><a name="Page_54" id="Page_54">[Pg 54]</a></span>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.</p> + +<hr class="full" /> + +<h2>FREE TRADE,<br /> +<br /> +AS PROMOTING PEACE<br /> +<br /> +<small>AND</small><br /> +<br /> +GOOD WILL AMONG MEN.</h2> + +<blockquote><p class="center"><i>A paper read before the New York Free Trade Club, Feb. 20, 1879, +by Charles L. Brace.</i></p></blockquote> + +<p>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.</p> + +<p>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.</p> + +<hr class="full" /> + + + + + + + + +<pre> + + + + + +End of Project Gutenberg's International Copyright, by George Haven Putnam + +*** END OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL COPYRIGHT *** + +***** This file should be named 22619-h.htm or 22619-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/2/2/6/1/22619/ + +Produced by A www.PGDP.net Volunteer, Dave Morgan, Richard +J. 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