{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_22619/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_22619","id":"gutenberg_22619","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/22619","summary":null,"tags":["Category: Economics","Category: Law & Criminology","Category: Philosophy & Ethics","Category: Politics","Copyright, International"],"text":"Produced by A www.PGDP.net Volunteer, Dave Morgan, Richard\nJ. Shiffer and the Online Distributed Proofreading Team\nat http://www.pgdp.net\n\n\n\n\n\n\n\n\n\n[Transcriber's Note: Every effort has been made to replicate this text\nas faithfully as possible, including obsolete and variant spellings\nand other inconsistencies.]\n\n\n\n\n  INTERNATIONAL COPYRIGHT\n\n\n  CONSIDERED IN SOME OF ITS RELATIONS TO\n  ETHICS AND POLITICAL ECONOMY\n\n  BY\n\n  GEORGE HAVEN PUTNAM\n\n\n  AN ADDRESS DELIVERED JANUARY 29TH, 1878, BEFORE\n  THE NEW YORK FREE-TRADE CLUB\n\n\n  NEW YORK\n\n  G. P. PUTNAM'S SONS\n  182 FIFTH AVENUE\n  1879.\n\n\n  COPYRIGHT, 1879, BY G. P. PUTNAM'S SONS.\n\n\n\n\nINTERNATIONAL COPYRIGHT.[1]\n\n     [1] A paper read January 29th, 1878, before the New York\n         Free-Trade Club.\n\n\nThe questions relating to copyright belong naturally to the sphere of\npolitical economy. They have to do with the laws governing production,\nand with the principles regulating supply and demand; and they are\ndirectly dependent upon a due determining of the proper functions of\nlegislation, and of the relations which legislation, having for its\nend the welfare of the community as a whole, ought to bear towards\nproduction and trade.\n\nAs students of economic science, we recognize the fact that, in all\nits phases, it is in reality based upon two or three very simple\npropositions, such as:\n\nTwo plus two make four.\n\nTwo from one you can't.\n\nThat which a man has created by his own labor is his own, to do what\nhe will with, subject only to his proportionate contribution to the\ncost of carrying on the organization of the community under the\nprotection of which his labor has been accomplished, and to the single\nlimitation that the results of his labor shall not be used to the\ndetriment of his fellow-men.\n\nIt is not in the power of legislators to make or to modify the laws of\ntrade; it is their business to act in accordance with these laws.\n\nEconomic science is, then, but the systematizing, on the basis of a\nfew generally accepted principles, of the relations of men as regards\ntheir labor and the results of their labor, namely, their property.\nThere is therefore an essential connection between the systems\ngoverning all these relations, however varied they may be. Soundness\nof thought in regard to one group of them leads to soundness of\nthought about the others.\n\nInterested as we are in the work of bringing the community to a sound\nand logical standard of economic faith and practice, it is important\nfor us to recognize and to emphasize the essential relations\nconnecting as well the different _scientific_ positions as the various\nsets of _fallacious_ assumptions. Further, we can hardly lay too much\nstress upon the oft-repeated dictum that a system may be correct in\ntheory yet pernicious in practice, maintaining, as we do, that where\nthe application of a theory brings failure the result is due either to\nthe unsoundness of the theory or to some blundering in its\napplication.\n\nWe claim, also, that with reference to the rights of labor, property,\nand capital, the free-trader is the true protectionist. It is the\nfree-trader who demands for the laborer the fullest, freest use of\nthe results of his labor, and for the capitalist the widest scope in\nthe employment of his capital; and it is he who asserts that the\npaternal authority which restricts the workingman in the free exchange\nof the products of his craft, which limits the directions and the\nmethods for the use of capital, appropriates--or, to speak more\nstrictly, destroys--a portion of the value of the labor and the\ncapital, and prevents the ownership from being real or complete.\n\nAuthors are laborers, and their works are, as fully as is the case\nwith any other class of laborers, the results of their own productive\nfaculties and energies.\n\nLiterary laborers lay claim, therefore, to the same protection for a\nfull and free enjoyment of the results of their labors as is demanded\nby those who work with their hands and who are in the strict sense of\nthe term manufacturers. Such enjoyment would include the right to sell\ntheir productions in the open market where they pleased and how they\npleased, and if this right to a free exchange is restricted within\npolitical boundaries, is hampered by artificial obstacles, the author\nis not the full owner of his material; a portion of its value has been\ntaken away from him. In so far as international copyrights have not\nbeen established, this is the position of the author of to-day.\n\nCopyright is defined by Drone in his \"Law of Copyright,\" as \"the\nexclusive right of the owner to multiply and to dispose of copies of\nan intellectual production.\" It is also used as a synonym for\nliterary property. Regarding literary property, Drone says:\n\n     \"There can be no property in a production of the mind unless it\n     is expressed in a definite form of words. But the property is not\n     in the words alone; it is in the intellectual creation, which\n     language is merely a means of expressing and communicating.\"\n\nCopyright may therefore be said to be the legal recognition of\nbrain-work as property.\n\nIt is akin in its nature to patent-right, which is also but the legal\nrecognition of the existence of property in an idea, or a group of\nideas, or the form of expression of an idea.\n\nInternational _patent_-rights have been recognized and carried into\neffect much more generally than have copyrights. The patentee of an\nimproved toothpick would be able to secure to-day a wider recognition\nof his right as a creator than is accorded to the author of \"Uncle\nTom's Cabin\" or of \"Adam Bede.\"\n\n\"The existence of literary property,\" says Drone, \"is traced back by\nrecord to 1558, when an entry of copies appears in the register of the\nCompany of Stationers of London.\" Between 1558 and 1710 there was no\nlegislation creating this property or confining ownership, nor any\nabridging its perpetuity or restricting its enjoyment. It was\nunderstood, therefore, to owe its existence to common law, and this\nconclusion, arrived at by the weightiest authorities, remained\npractically unquestioned until 1774. During this earlier period there\nwere some instances of the recognition of literary property, but the\nearliest reported case concerning such property occurred in 1666, in\nwhich the House of Lords unanimously agreed that \"a copyright was a\nthing acknowledged at common law.\" A licensing act, passed in\nParliament in 1674, and expiring in 1679, prohibited, under pain of\nforfeiture, the printing of any work without the consent of the owner.\nBut the first act attempting to fully define and protect copyright in\nGreat Britain was that of 1710, known as the 8th of Anne. It was\nentitled \"An Act for the Encouragement of Learning,\" and, declaring\nthat an author should have the sole right of publishing his book,\nprescribed penalties against any who should infringe that right. Its\nevident intention was to more clearly establish, and make more easily\ndefensible, the rights of authors, but curiously enough it had for its\neffect a very material limitation of those rights.\n\nIt provided, namely, that copyright should be secured to the author or\nhis assigns for fourteen years, with a privilege of renewal to the\nauthor or his representatives for fourteen years longer. This\nprivilege of renewal was not conveyed to any one who might have\npurchased the author's copyright. It was supposed for a long time that\nthis statute had not interfered with any rights that authors might\npossess at common law, and in the oft-cited case of Millar _vs._\nTaylor in 1769, in regard to a reprint of Thomson's \"Seasons,\" a\nmajority of the judges of the King's Bench (including among them Lord\nMansfield) gave it as their opinion that the act was _not_ intended to\ndestroy, and had not destroyed, copyright at common law, but had\nsimply protected it more efficiently during the periods specified. The\nopinion delivered by Lord Mansfield, as chief justice of the court,\nremains one of the strongest and most conclusive statements of the\nproperty-rights of authors, and has been termed one of the grandest\njudgments in English judicial literature. Its conclusion is as\nfollows:\n\n     \"Upon the whole, I conclude that upon every principle of reason,\n     natural justice, morality, and common law; upon the evidence of\n     the long received opinion of this property appearing in ancient\n     proceedings and in law cases; upon the clear sense of the\n     legislature, and the opinions of the greatest lawyers of their\n     time since that statute--the right (that is in perpetuity) of an\n     author to the copy of his work appears to be well founded, ...\n     and I hope the learned and industrious will be permitted from\n     henceforth not only to reap the same, but the full profits of\n     their ingenious labors, without interruptions, to the honor and\n     advantage of themselves and their families.\"\n\nIn 1774, in the case of Donaldson _vs._ Beckett, the House of Lords\ndecided on an appeal, first, that authors had possessed at common law\nthe right of copyright in perpetuity, but, secondly, that this right\nat common law had been taken away by the statute of Anne, and a term\nof years substituted for perpetuity.\n\nChief among those who, in opposition to this decision, advised the\nlords that literary property was not less inviolable than any species\nof property known to the law of England, was Sir William Blackstone.\nThe most important influence in support of the decision was exercised\nby the arguments of Justice Yates and Lord Camden. \"This judgment,\"\nsays Drone, \"has continued to represent the law; but its soundness has\nbeen questioned by very high authorities.\" In 1851 Lord Campbell\nexpressed his agreement with the views of Lord Mansfield. In 1854,\nJustice Coleridge said: \"If there was one subject more than another\nupon which the great and varied learning of Lord Mansfield, his\nspecial familiarity with it, and the philosophical turn of his\nintellect, could give his judgment peculiar weight, it was this. I\nrequire no higher authority for a position which seems to me in itself\nreasonable and just.\"\n\nIn 1841 an important debate took place in Parliament upon this same\nissue. The right at common law of ownership in perpetuity was asserted\nby Sergeant Talfourd and Lord Mahon, and the opinion that copyright\nwas the creation of statute law and should be limited to a term of\nyears was defended by Macaulay.\n\nThe conclusions of the latter were accepted by the House, and the act\nof 1842, which is still in force, was the result. By this act the term\nof copyright was fixed at forty-two years, or if at the end of that\ntime the author be still living, for the duration of his life.\n\nI have referred to these discussions as to the nature of the\nauthority through which the author's ownership exists or is created,\nas the question will be found to have an important bearing upon\ninternational copyright. In connection with this debate of 1842 was\nframed the famous petition of Thomas Hood, which, if it were not\npresented to Parliament, certainly deserved to be. It makes a fair\npresentment of the author's case, and is worth quoting:\n\n     \"That your petitioner is the proprietor of certain copyrights\n     which the law treats as copyhold, but which in justice and\n     equity, should be his freeholds. He cannot conceive how 'Hood's\n     Own,' without a change in the title-deeds as well as the title,\n     can become 'Everybody's Own' hereafter.\n\n     \"That your petitioner may burn or publish his manuscripts at his\n     own option, and enjoys a right in and control over his own\n     productions which no press, now or hereafter, can justly press\n     out of him.\n\n     \"That as a landed proprietor does not lose his right to his\n     estate in perpetuity by throwing open his grounds for the\n     convenience and gratification of the public, neither ought the\n     property of an author in his works to be taken from him, unless\n     all parks become commons.\n\n     \"That your petitioner, having sundry snug little estates in view,\n     would not object, after a term, to contribute his private share\n     to a general scramble, provided the landed and moneyed interests,\n     as well as the literary interest, were thrown into the heap; but\n     that in the mean time, the fruits of his brain ought no more to\n     be cast amongst the public than a Christian woman's apples or a\n     Jewess' oranges.\n\n     \"That cheap bread is as desirable and necessary as cheap books;\n     but it hath not yet been thought just or expedient to ordain\n     that, after a certain number of crops, all corn-fields shall\n     become public property.\n\n     \"That, whereas in other cases long possession is held to affirm a\n     right to property, it is inconsistent and unjust that a mere\n     lapse of twenty-eight or any other term of years should deprive\n     an author at once of principal and interest in his own literary\n     fund. To be robbed by Time is a sorry encouragement to write for\n     Futurity!\n\n     \"That a work which endures for many years must be of a sterling\n     character, and ought to become national property; but at the\n     expense of the public, or at any expense save that of the author\n     or his descendants. It must be an ungrateful generation that, in\n     its love of 'cheap copies,' can lose all regard for 'the dear\n     originals.'\n\n     \"That, whereas, your petitioner has sold sundry of his copyrights\n     to certain publishers for a sum of money, he does not see how the\n     public, which is only a larger firm, can justly acquire even a\n     share in copyright, except by similar means--namely, by purchase\n     or assignment. That the public having constituted itself by law\n     the executor and legatee of the author, ought in justice, and\n     according to practice in other cases, to take to his debts as\n     well as his literary assets.\n\n     \"That when your petitioner shall be dead and buried, he might\n     with as much propriety and decency have his body snatched as his\n     literary remains.\n\n     \"That, by the present law, the wisest, virtuousest, discreetest,\n     best of authors, is tardily rewarded, precisely as a vicious,\n     seditious, or blasphemous writer is summarily punished--namely,\n     by the forfeiture of his copyright.\n\n     \"That, in case of infringement on his copyright, your petitioner\n     cannot conscientiously or comfortably apply for redress to the\n     law whilst it sanctions universal piracy hereafter.\n\n     \"That your petitioner hath two children, who look up to him, not\n     only as the author of the 'Comic Annual,' but as the author of\n     their being. That the effect of the law as regards an author is\n     virtually to disinherit his next of kin, and cut him off with a\n     book instead of a shilling.\n\n     \"That your petitioner is very willing to write for posterity on\n     the lowest terms, and would not object to the long credit; but\n     that, when his heir shall apply for payment to posterity, he will\n     be referred back to antiquity.\n\n     \"That, as a man's hairs belong to his head, so his head should\n     belong to his heirs; whereas, on the contrary, your petitioner\n     hath ascertained, by a nice calculation, that one of his\n     principal copyrights will expire on the same day that his only\n     son should come of age. The very law of nature protests against\n     an unnatural law which compels an author to write for anybody's\n     posterity except his own.\n\n     \"Finally, whereas it has been urged, 'if an author writes for\n     posterity, let him look to posterity for his reward,' your\n     petitioner adopts that very argument, and on its very principle\n     prays for the adoption of the bill introduced by Mr. Sergeant\n     Talfourd, seeing that by the present arrangement posterity is\n     bound to pay everybody or anybody but the true creditor.\"\n\nIn France perpetual copyright was guaranteed from very early times.\nThe Ordinances of Moulines of 1556, the Declaration of Charles IX. in\n1571, and the letters-patent of Henry III. constituted the ancient\nlegislation on the subject, but the sovereign had a right to refuse\nthe guarantee whenever he thought desirable. In 1761 the Council of\nState continued to a grandson of La Fontaine the privilege that his\ngrandfather possessed, on condition, however, that he should not\nassign it to a bookseller. The Revolution of 1789 modified this\nregime, and now copyright is guaranteed to authors and their widows\nduring their lives, to their children, for twenty years; and if they\nleave no children, to their heirs for ten years only. According to\nFrench law, a French subject does not injure his copyright by\npublishing his work first in a foreign country. No matter where the\npublication takes place, copyright forthwith accrues in France on his\nbehalf, and on the necessary deposit being effected, its infringement\nmay be proceeded against in a French court. Moreover, a foreigner\npublishing in France will enjoy the same copyright as a native, and\nthis whether he has previously published in his own or in any other\ncountry or not. In Germany and in Austria copyright continues for the\nauthors life and for thirty years after his death. The longest term of\ncopyright is conceded in Italy, where it endures for the life of the\nauthor and forty years, with a second term of forty years, during\nwhich last any one can publish the work upon paying the royalty to the\nauthor or his assigns. The shortest term of copyright exists in\nGreece, where it endures for but fifteen years from publication.\n\nIn the United States, by the law of 1831, the term is for twenty-eight\nyears, with the right of renewal to the author, his wife or his\nchildren, for fourteen years further. The renewal must be recorded\nwithin six months before the expiration of the first term of\ntwenty-eight years.\n\nDrone says:\n\n     \"In the United States the authorities have been divided not less\n     than in England regarding the origin and nature of literary\n     property. Indeed, the doctrines there prevalent have ruled our\n     courts. In 1834, in the case of Wheaton _vs._ Peters, the same\n     question came before the Supreme Court, that had been decided by\n     the Court of King's Bench in 1769, and by the House of Lords in\n     1774--namely, whether copyright in a published work existed by\n     common law; and if so, whether it had been taken away by statute.\n\n     \"The court held that the law had been settled in England to the\n     effect that the author had no right in a published work excepting\n     that secured by statute; that there was no common law of the\n     United States, and that the common law as to copyright had not\n     been adopted in Pennsylvania, in which State the cause of this\n     action arose; and that by the copyright statute of 1790, Congress\n     did not affirm an existing right, but created one. The opinion,\n     which was delivered by Justice McLean, was concurred in by three\n     of the judges, and dissented from by two, Justices Thompson and\n     Baldwin, who defended the positions and recalled the arguments of\n     Lord Mansfield and Sir William Blackstone. Justice Baldwin said:\n     'Protection is the avowed and real purpose of the act of 1790.\n     There is nothing here admitting the construction that a new right\n     is created ... It is a forced and unreasonable interpretation to\n     consider it as restricting or abolishing any pre-existing\n     right!'\"\n\nPrevious to the act of Congress of 1790, acts securing copyright to\nauthors for limited terms had been passed in Connecticut and\nMassachusetts in 1783, in Virginia in 1785, in New York in 1786, and\nin other States at later dates. The statute of 1790 gave copyright for\nfourteen years, with a renewal to the author, if living, of fourteen\nyears further. In 1831 was passed the act of already quoted, and in\n1870 the regulation went into effect that a printed title of the work\ncopyrighted must be filed with the Librarian of Congress before\npublication, and two copies of the complete book be delivered within\nten days after publication.\n\nIn 1874 it was provided that the form of the copyright notice in books\nshould read, \"Copyright, 18--, by A. B.\"\n\nThe first step towards a recognition of the rights of foreign authors\nwas taken in 1836 by Prussia, when she prohibited the sale within her\nboundaries of any pirated or counterfeited editions of German works.\n\nIn 1837 a Copyright Convention was concluded between the different\nmembers of the German Confederation. In 1838 the British Parliament\npassed a law to obtain for authors the benefits of international\ncopyright, and in 1846 England entered into a convention with Prussia,\nin 1851 with France and Hanover, in 1854 with Belgium, and between\n1854 and 1860 with Holland, Italy, Switzerland, and Spain. Between\n1846 and 1861 similar conventions were entered into by France with\nBelgium, Germany, Holland, Switzerland, and Italy, and nearly all the\nContinental powers have now copyright arrangements with each other. As\nfar as I have been able to learn, it is not requisite under these\narrangements to have a book separately entered for copyright in each\ncountry. The single entry in the place of first publication is\nsufficient to protect the author, and to leave him free to make,\nwithin a specified time, his own arrangements with foreign publishers.\n\nIn the general copyright statutes, Parliament made no express\ndistinction between native and foreign authors. The copyright was\ngranted \"to authors,\" without any restriction as to nationality. It\nhas been contended, therefore, by jurists on the one hand that the\nprivilege must be presumed to have been intended for British subjects\nexclusively, and on the other that it of necessity belonged to all\nauthors, whether native or foreign.\n\nThere were, previous to 1854, several conflicting decisions of the\ncourts on this question. In that year the House of Lords decided, in\nthe case of Jeffreys _v._ Boosey, that a foreign author, resident\nabroad, was not entitled to English copyright.\n\nIn 1868 the House of Lords, in the case of Routledge _v._ Low, with\nreference to the rights of an American author who was residing in\nCanada at the time of the publication of his book in London, declared\nthat an alien became entitled to English copyright by first publishing\nin the United Kingdom, provided he were, at the time of publication,\nanywhere within the British dominions. Drone says that \"this judgment\nhas continued to represent the law.\"\n\nIt is certainly the case that for a few years after 1868, as a\nconsequence of this decision, several American authors whose books\nwere being published in London, took up a temporary residence in\nCanada, which enabled their London publishers to enter the books for\ncopyright, and to pay the authors an honorarium.\n\nI am not able to quote any decisions that have set aside or modified\nthe above, but I have been advised by leading London publishers that\nthe effect of this judgment has in some way been nullified, and that\n\"Canada copyrights\" can no longer be depended upon for protecting\nAmerican authors in England.\n\nIn the United States copyright can at present be secured only by a\ncitizen or permanent resident, and there is no regulation to prevent\nthe use, without remuneration, of the literary property of foreign\nauthors. The United States is therefore at present the only country\nitself possessing a literature of importance, and making a large use\nof the literature of the world, which has done nothing to recognize\nand protect by law the rights of foreign authors of whose property it\nis enjoying the benefit, or to obtain a similar recognition and\nprotection for its own authors abroad.\n\nIt has looked after the rights of the makers of its sewing-machines,\nits telephones, and its mouse-traps, but it appears to have entirely\nforgotten the makers of its literature. The position taken by our\ngovernment in securing for an American author the benefit of the sale\nof his works at home, while practically estopping him from obtaining\nany advantage from their sales abroad, is somewhat analogous to its\ntreatment of American ship-owners, who are allowed to pick up all the\nfreights that offer inland and along the coast, but are forbidden to\nearn a single penny on the high seas.\n\nIt is not easy to understand the cause of this continued indifference\nto the claims of our literary workmen; they do not come into\ncompetition with the Delaware River or with any manufacturing\ninterests for _subsidies_; they ask simply for _markets_.\n\nIt is true that there have been in the history of our country\ngovernments which seemed impatient of the claims of any \"literary\nfellers;\" but the majority of our administrations have shown a fair\nrespect for such \"fellers,\" and even a readiness to make use of their\nservices.\n\nThe difficulty has really been, however, not with the administrations,\nbut with the people at large, who have failed to fairly educate\nthemselves on the subject, or to recognize that an international\ncopyright was called for not merely on principles of general equity,\nbut as a matter of simple justice to American authors.\n\nThese have suffered, and are suffering from the present state of\nthings in two ways. In the first place, they lose the royalty on the\nsales of their books in Europe, Canada, Australia, etc., that ought to\nbe secured to them by treaties of copyright reciprocity. These sales\nhave become, with the growth of American literature, very\nconsiderable, and are each year increasing in importance. Even a\nquarter of a century ago there were enough American books whose fame\nwas world-wide to have rendered a very moderate royalty on their sales\na matter of great importance to their authors and to the community.\n\"Uncle Tom's Cabin,\" Irving's \"Sketch-Book\" and other volumes,\nThompson's \"Land and the Book,\" Warner's \"Wide, Wide World,\" Webster's\nDictionary, James' \"Two Years before the Mast,\" and Peter Parley's\nhistories are a few random specimens from the earlier list, which is a\ngreat deal longer than might at first be thought.\n\nIn an official report of the 25th Congress it was stated that up to\n1838 not less than 600 American works had been reprinted in England.\nAccording to the \"American Facts\" of G.P. Putnam, 382 American books,\nacknowledged to be such, were reprinted in Great Britain between 1833\nand 1843, while a large amount of American literary material had been\n\"adapted,\" or issued under new titles as if they had been original\nBritish works. Among these last he quotes Judge Story's \"Law of\nBailments,\" Everett's \"Greek Grammar,\" Bancroft's Translation of\nHeeren's Histories, Dr. Harris' \"Natural History,\" etc., etc.\n\nSecondly, the want of an international copyright has placed American\nauthors at a disadvantage because it has checked the sales of their\nwares at home. Other things being equal, the publisher will, like any\nother trader, manufacture such goods as will give him the largest\nprofit, and as he can sell the most readily.\n\nIf he has before him an American novel on which, if he prints it, he\nmust pay the author a royalty, and an English novel of apparently\nequal merit, on which he is not called upon by law to pay anything,\nthe commercial inducement is on the side of the latter. If, on the\nscore of patriotism or for some other reason, he may decide in favor\nof the former, his neighbor or rival will take the English work, and\nwill have advantages for underselling him. As a matter of fact, as I\nshall specify further on, it is the custom of the leading publishing\nhouses to make some payment for the English material that they\nreprint, but as they secure no legal title to such material, they\ncannot, as a rule, pay as much for it as they would for similar\nAmerican work. There is also the advantage connected with English\nworks that they usually come to the American publisher in type, in\nconvenient form for a rapid examination, and that he can often obtain\nsome English opinions about them which help him to make up his own\npublishing judgment, and are of very material assistance in securing\nfor the books the favorable attention of the American public. It has\ntherefore been the case that an American work of fiction has had to be\na good deal better than a similar English work, and more marked in its\nattractiveness in order to have anything like the same chance of\nsuccess. And what is the case with fiction, is true, though to a less\ndegree, with books for young folks and works in other departments of\nliterature. It is to be said, however, that this difference in favor\nof English productions has been very much greater in past years than\nat present, and is, I think, steadily decreasing.\n\nAmerican writers have, against all disadvantages, forced their books\nto the favorable attention, not only of the American but of the\nforeign public, and the best work is now fairly secure of a hearing.\nBut there is no question but what the want of a copyright measure has,\nas above explained, operated during the past three quarters of a\ncentury to retard and discourage the growth of American literature,\nespecially of American fiction, and to prevent American authors from\nreceiving a fair return for their labor. An international copyright is\nthe first step towards that long-waited-for \"great American novel.\"\n\nIn 1876 a Commission was appointed by the Government of Great Britain\n\"to make inquiry in regard to the laws and regulations relating to\nhome, colonial, and international copyright.\" The Commission was made\nfairly representative of the different interests to be considered,\ncomprising among authors: Earl Stanhope, Louis Mallet, Fitzjames\nStephen, Edward Jenkins, William Smith, Sir Henry Holland, James\nAnthony Froude, and Anthony Trollope, and also Sir Julius Benedict for\nthe composers, Sir Charles Young for the dramatists, Sir John Rose and\nMr. Farrer for colonial interests, and Mr. F. R. Daldy for the\npublishers; and it has done its work in the thorough, painstaking way\nwhich is characteristic of the methods of British legislation.\n\nIt has collected during the past two years a vast mass of testimony\nfrom various sources, and after full consideration has arrived at a\nseries of recommendations which it has presented to Parliament, and\nwhich will in all probability be adopted.\n\nIt is recommended that the copyright on books, instead of holding for\nforty-two years from date of registration, shall endure for the\nlifetime of the author and for thirty years thereafter. This is the\narrangement at present existing in Germany, and it has the important\nadvantage that under it all the copyrights of an author will expire at\nthe same date.\n\nThe Commission further recommends (and this is the recommendation most\nimportant for our subject) that the right of copyright throughout the\nBritish dominions be extended to any author, wherever resident and of\nwhatever nationality, whose work may first be published within the\nBritish Empire.\n\nWith reference to the present relations of British authors with this\ncountry, it uses the following words: \"It has been suggested to us\nthat this country would be justified in taking steps of a retaliatory\ncharacter, with a view of enforcing, incidentally, that protection\nfrom the United States which we accord to them. This might be done by\nwithdrawing from the Americans the privilege of copyright on first\npublication in this country. We have, however, come to the conclusion\nthat, on the highest public grounds of policy and expediency, it is\nadvisable that our law should be based on correct principles,\nirrespectively of the opinions or the policy of other nations. We\nadmit the propriety of protecting copyright, and it appears to us that\nthe principle of copyright, if admitted, is of universal application.\nWe therefore recommend that this country should pursue the policy of\nrecognizing the author's rights, irrespective of nationality.\"\n\nHere is a claim for a far-seeing, statesmanlike policy, based upon\nprinciples of wide equity, and planned for the permanent advantage of\nliterature in England and throughout the world. Contrast with this the\nnarrow and local views of the following resolutions adopted at a\nmeeting held in Philadelphia in January, 1872, with reference to\ninternational copyright, at which, if I remember rightly, Mr. Henry\nCarey Baird presided;\n\n\"I. That thought, unless expressed, is the property of the thinker\" (a\npretty safe proposition, as, _until_ expressed, it could hardly incur\nany serious risk of being appropriated); \"when given to the world, it\nis as light, free to all.\n\n\"II. As property it can only demand the protection of the municipal\nlaw of the country to which the thinker is subject.\"\n\nThe property which would, if it still existed, most nearly approximate\nto such a definition as this is that in _slaves_. Twenty years ago, an\nAfrican chattel who was worth $1000 in Charleston became, on slipping\nacross to the Bermudas, as a piece of property valueless. He had no\nlonger a market price.\n\nIt is this ephemeral kind of ownership, limited by accidental\npolitical boundaries, that our Philadelphia friends are willing to\nconcede to the work of a man's mind, the productions into which have\nbeen absorbed the grey matter of his brain and perhaps the best part\nof his life.\n\n\"III. The author of any country, by becoming a citizen of this, and\nassuming and performing the duties thereof, can have the same\nprotection that an American author has.\"\n\nWe have already shown what an exceedingly unprotective and\nunremunerative arrangement it is that is accorded to the American\nauthor, and we have yet to find a single one, except perhaps Mr.\nCarey, who is satisfied with it.\n\nWhy a European author, who has before him, under international\nconventions, the markets of his native country and of all the world,\nexcepting belated America, should be expected to give up these for the\npoor half-loaf of protection accorded to his American brother we can\nhardly understand.\n\n\"IV. The trading of privileges to foreign authors for privileges to be\ngranted to Americans is not just, because the interests of others than\nthemselves are sacrificed thereby.\"\n\nThat strikes one as a remarkable sentence to come from Philadelphia.\nHere are a number of American manufacturers who ask for a certain very\nmoderate amount of protection for their productions, and our\nPhiladelphia friends, filled with an unwonted zeal for the welfare of\nthe community at large, say, \"No; this won't do. Prices would be\nhigher, and _consumers_ would suffer.\"\n\nIt is evident that this want of practical sympathy with these literary\nmanufacturers is not due to any lack of interest in the enlightenment\nof the community, for the last article says:\n\n\"V. Because the good of the whole people and the safety of our\nrepublican institutions demand that books shall not be made too costly\nfor the multitude by giving the power to foreign authors to fix their\nprice here as well as abroad.\"\n\nI think we may well doubt whether education as a whole, including the\nimportant branch of ethics, is advanced by permitting our citizens to\nappropriate, without compensation, the labor of others, while through\nsuch appropriation they are also assisting to deprive our own authors\nof a portion of their rightful earnings. But apart from that, the\nproposition, as stated, proves too much. It is fatal to all copyright\nand to all patent-right. If the good of the community and the safety\nof our institutions demand that, in order to make books cheap, the\nclaim to a compensation for the authors must be denied, why should we\ncontinue to pay copyrights to Longfellow and Whittier, or to the\nfamilies of Irving and Bryant? The so-called owners of these\ncopyrights actually have it in their power, in connection with their\npublishers, to \"fix the prices\" of their books in this market. This\nmonopoly must indeed be pernicious and dangerous when it arouses\nPennsylvania to come to the rescue of oppressed and impoverished\nconsumers against the exactions of greedy producers, and to raise the\ncry of \"free books for free men.\"\n\nThere is certainly something refreshing in this zeal for the rights of\nthe consumer, though we may doubt the equity of its application in\nthis particular instance; but we can nevertheless hardly be satisfied\nto have an utterance like that of these resolutions quoted (as it is\nin the last edition of the Encyclopaedia Britannica) as \"the latest\nAmerican views on the subject.\"\n\nThe history of the efforts made in this country to secure\ninternational copyright is not a long one. The attempts have been few,\nand have been lacking in organization and in unanimity of opinion, and\nthey have for the most part been made with but little apparent\nexpectation of any immediate success. Those interested seem to have\nalways felt that popular opinion was, on the whole, against them, and\nthat progress could be hoped for only through the slow process of\nbuilding up by education and discussion a more enlightened public\nsentiment.\n\nIn 1838, after the passing of the first International Copyright Act\nin Great Britain, Lord Palmerston invited the American Government to\ncooeperate in establishing a copyright convention between the two\ncountries.\n\nIn the year previous, Henry Clay, as chairman of a committee on the\nsubject, had reported to the Senate very strongly in favor of such a\nconvention, taking the ground that the author's right of property in\nhis work was similar to that of the inventor in his patent.\n\nThis is a logical position for a protectionist, interested in the\nrights of labor, to have taken, and the followers of Henry Clay, who\nare to-day opposed to any measure of the kind, would do well to bear\nin mind this opinion of their ablest leader.\n\nNo action was taken in regard to Mr. Clay's report or Lord\nPalmerston's proposal.\n\nIn 1840 Mr. G. P. Putnam issued in pamphlet form \"An Argument in\nbehalf of International Copyright,\" the first publication on the\nsubject in the United States of which I find record. In 1843 Mr.\nPutnam obtained the signatures of ninety-seven publishers, printers,\nand binders to a petition he had prepared, and which was duly\npresented to Congress. It took the broad ground that the absence of an\ninternational copyright was \"alike injurious to the business of\npublishing and to the best interests of the people at large.\"\n\nA memorial was presented the same year in opposition to this petition,\nsetting forth, among other things, that an international copyright\nwould \"prevent the adaptation of English books to American wants.\" In\nthe report made by Mr. Baldwin to Congress twenty-five years later, he\nremarks that \"the mutilation and reconstruction of American books to\nsuit English wants are common to a shameless extent.\"\n\nIn 1853 the question of a copyright convention with Great Britain was\nagain under discussion, the measure being favored by Mr. Everett, at\nthat time Secretary of State. Five of the leading publishing houses in\nNew York addressed a letter to Mr. Everett in which, while favoring a\nconvention, they advised--\n\n1st. That the foreign author must be required to register the title of\nhis work in the United States before its publication abroad.\n\n2d. That the work, to secure protection, must be issued in the United\nStates within thirty days of its publication abroad; and\n\n3d. That the reprint must be wholly manufactured in the United States.\n\nShortly afterwards Mr. Carey published his \"Letters on International\nCopyright,\" in which he took the ground that the facts and ideas in a\nbook are the common property of society, and that property in\ncopyright is indefensible. In 1858 a bill was introduced into the\nHouse of Representatives by Mr. Morris, of Pennsylvania, providing for\ninternational copyright on the basis of an entire remanufacture of the\nforeign work and its reissue by an American publisher within thirty\ndays of the publication abroad. The bill does not appear to have\nreceived any consideration.\n\nIn March, 1868, a circular letter headed \"Justice to Authors and\nArtists,\" was issued by a Committee composed of G. P. Putnam, Dr. S.\nI. Prime, Henry Ivison, James Parton, and Egbert Hazard, calling\ntogether a meeting for the consideration of the subject of\ninternational copyright. The meeting was held on the 9th of April, Mr.\nBryant presiding, and a society was organized under the title of the\n\"Copyright Association for the Protection and Advancement of\nLiterature and Art,\" of which Mr. Bryant was made president and E. C.\nStedman secretary. The primary object of the Association was stated to\nbe \"to promote the enactment of a just and suitable international\ncopyright law for the benefit of authors and artists in all parts of\nthe world.\"\n\nA memorial had been prepared by the above-mentioned Committee to be\npresented to Congress, which requested Congress to give its early\nattention to the passage of a bill \"to secure in all parts of the\nworld the rights of authors,\" etc., but which made no recommendations\nas to the details of any measure. Of the 153 signatures attached to\nthis memorial, 101 were those of authors, and 19 of publishers.\n\nIn the fall of 1868 Mr. J. D. Baldwin, member of Congress from\nWorcester, Mass., reported a bill that had been prepared with the\nco-operation of the Executive Committee of the Copyright Association,\nwhich provided, That a foreign work could secure a copyright in this\ncountry provided it was wholly manufactured here and should be issued\nfor sale by a publisher who was an American citizen. The benefit of\nthe copyright was also limited to the author and his assigns.\n\nThe bill was recommitted to the Joint Committee on the Library, and no\naction was taken upon it. The members of this Committee were Senators\nE. D. Morgan, of New York, Howe, of Wisconsin, and Fessenden, of\nMaine, who were opposed to the measure, and Representatives Baldwin,\nof Massachusetts, Pruyn, of New York, and Spalding, of Ohio, who were\nin favor of it. The bill was also to have been supported in the House\nby Michael C. Kerr, of Indiana. Mr. Baldwin explains that an important\ncause for the shelving of the measure without debate was the\nimpeachment of President Johnson, which was at that time absorbing the\nattention of Congress and the country. No general expression of\nopinion was therefore elicited upon the question from either Congress\nor the people, and in fact the question has never reached such a stage\nas to enable such an expression of public opinion to be arrived at.\n\nIt is my own belief that if the issue were fairly presented to them,\nthe American people could be trusted to decide it honestly and wisely.\n\nThe active members of the committee of the Copyright Association,\nunder whose general suggestions this bill of Mr. Baldwin's had been\nframed, were Dr. S. Irenaeus Prime, George P. Putnam, and James Parton.\nDr. Prime published in _Putnam's Magazine_ in May, 1868, a paper on\nthe \"Right of Copyright,\" which remains perhaps the most concise and\ncomprehensive statement of the principles governing the question, and\nwhich sets forth very clearly the necessary connection between Carey's\ndenial of the right of property in books and Proudhon's claim that all\nproperty is robbery. In 1871 Mr. Cox of New York introduced a bill\nwhich was practically identical with Mr. Baldwin's measure, and which\nwas also recommitted to the Library Committee. In 1872 the new Library\nCommittee called upon the publishers and others interested to aid in\nframing a bill.\n\nA meeting of the publishers was called in New York, which was attended\nby but one firm outside of New York; the majority of the firms present\nwere in favor of the provisions of Mr. Cox's bill, already referred\nto. The report was dissented from by a large minority on the ground\nthat the bill was in the interests of the publishers rather than that\nof the public; that the prohibition of the use of foreign stereotypes\nand electrotypes of illustrations was an economic absurdity; and that\nan English publishing house could in any case, through an American\npartner, retain control of the American market. The report of the\nminority was prepared by Mr. Edward Seymour, of Scribner, Armstrong &\nCo. During the same week a bill was drafted by Mr. C. A. Bristed,\nrepresenting more especially the views of the authors in the\nInternational Copyright Association, which provided simply that \"all\nrights of property secured to citizens of the United States by\nexisting copyright laws are hereby secured to the citizens and\nsubjects of every country the government of which secures reciprocal\nrights to the citizens of the United States.\" The same result as that\naimed at in Mr. Bristed's bill would have been obtained by the\nadoption of the recommendation made by Mr. J. A. Morgan in his work on\n\"The Law of Literature,\" published in 1876. He suggested that the\npresent copyright law be amended by simply inserting the word \"person\"\nin place of \"citizen,\" in which case its privileges would at once be\nsecured to any authors, of whatever nationality, who complied with its\nrequirements.\n\nA few weeks later the meeting was held in Philadelphia whose\nresolutions in opposition to international copyright (which, as we\nhave shown, were equally forcible against any copyright) we have\nalready quoted.\n\nThese four reports were submitted to the Library Committee of\nCongress, together with one or two individual measures, of which the\nmost noteworthy were those of Harper & Bros., and of John P. Morton,\nbookseller, of Louisville.\n\nMessrs. Harper, in a letter presented by their counsel, objected to\nany measure of international copyright on the broad ground that it\nwould \"add to the price of books and interfere with the education of\nthe people.\" This consideration is of course open to the same\ncriticism as the Philadelphia platform; it is equally forcible against\nany copyright whatever. As Thomas Hood says, \"cheap _bread_ is as\ndesirable and necessary as cheap books,\" but one does not on that\nground appropriate the farmer's wheat-stacks!\n\nMr. Morton was in favor of an arrangement that should give to any\ndealer the privilege of reprinting a foreign work, provided he would\ncontract to pay to the author or his representative 10 per cent of the\nwholesale price of such work. He advised also that the American market\nshould be left open to the foreign edition, so that the competition\nshould be perfectly unrestricted.\n\nThe proposition that all dealers who would contract to pay to the\nauthor a royalty (to be fixed by law) should be at liberty to\nundertake the publication of a work was at a later date presented to\nthe British Commission by Mr. Farrer and Sir Henry Holland, first with\nreference to home copyright, and secondly as a suggestion for an\ninternational arrangement. In this last shape the writer had the\nopportunity, in 1876, of presenting to the Commission some\nconsiderations against it. These will be referred to further on.\n\nA similar suggestion formed the basis of a measure submitted in 1872\nby Mr. Elderkin, of New York, to the Library Committee of Congress,\nand known afterwards as the Sherman Bill.\n\nIn view of the wide diversity of the plans and suggestions presented\nto this Committee, there was certainly some ground for the statement\nmade in his report by the chairman, Senator Lot M. Morrill, of Maine,\nthat \"there was no unanimity of opinion among those interested in the\nmeasure.\" He maintained, further, that an international copyright was\nnot called for by reasons of general equity or of constitutional law;\nthat the adoption of any plan which had been proposed would be of very\ndoubtful advantage to American authors, and would not only be an\nunquestionable and permanent injury to the interests engaged in the\nmanufacture of books, but a hindrance to the diffusion of knowledge\namong the people, and to the cause of American education.\n\nThis report closed for the time the consideration of the subject.\n\nThe efforts in behalf of international copyright have been always more\nor less hampered by the question being confused with that of a\nprotective tariff.\n\nThe strongest opposition to a copyright measure has as a rule come\nfrom the protectionists. Richard Grant White said in 1868: \"The\nrefusal of copyright in the United States to British authors is in\nfact, though it is not so avowed, a part of the 'American' protective\nsystem.\" And again: \"With free trade we shall have just international\ncopyright.\"\n\nIt would be difficult, however, for the protectionists to show logical\ngrounds for their position. American authors are manufacturers, who are\nsimply asking, first, that they shall not be undersold in their home\nmarket by goods imported from abroad on which no (ownership) duty has\nbeen paid,--which have, namely, been simply \"appropriated;\" and\nsecondly, that the government may facilitate their efforts to secure a\nsale for their own goods in foreign markets. These are claims with\nwhich a protectionist who is interested in developing American industry\nought certainly to be in sympathy.\n\nThe contingency that troubles him, however, is the possibility that,\nif the English author is given the right to sell his books in this\ncountry the copies sold may be to a greater or less extent\nmanufactured in England, and the business of making these copies may\nbe lost to American printers, binders, and paper men. He is namely,\nmuch more concerned for the protection of the makers of the _material\ncasing_ of the book than for that of the author who creates its\nessential substance.\n\nIt is evidently to the advantage of the consumer, upon whose interests\nthe Philadelphia resolutions laid so much stress, that the labor of\npreparing the editions of his books be economized as much as possible.\n\nThe principal portion of the cost of a first edition of a book is the\nsetting of the type, or, if the work is illustrated, in the setting of\nthe type and the designing and engraving of the illustrations.\n\nIf this first cost of stereotyping and engraving can be divided among\nseveral editions, say one for Great Britain, one for the United\nStates, and one for Canada and the other colonies, it is evident that\nthe proportion to be charged to each copy printed is less, and that\nthe selling price per copy can be smaller, than would be the case if\nthis first cost has got to be repeated in full for each market.\n\nIt is then to the advantage of the consumer that, whatever copyright\narrangement be made, nothing shall stand in the way of foreign\nstereotypes and illustrations being duplicated for use here whenever\nthe foreign edition is in such shape as to render this duplicating an\nadvantage and a saving in cost.\n\nThe few protectionists who have expressed themselves in favor of an\ninternational copyright measure, and some others who have fears as to\nour publishing interests being able to hold their own against any open\ncompetition, insist upon the condition that foreign works to obtain\ncopyright must be wholly remanufactured and republished in this\ncountry.\n\nWe have shown how such a condition would, in the majority of cases, be\ncontrary to the interests of the American consumer, while the British\nauthor is naturally opposed to it because, in increasing materially\nthe outlay to be incurred by the American publisher in the production\nof his edition, it proportionately diminishes the profits or prospects\nof profits from which is calculated the remuneration that can be paid\nto the author.\n\nThe measure of permitting the foreign book to be reprinted by all\ndealers who would contract to pay the author a specified royalty has\nat first sight something specious and plausible about it. It seems to\nbe in harmony with the principles of freedom of trade, in which we are\nbelievers. It is, however, directly opposed to those principles;\nfirst, it impairs the freedom of contract, preventing the producer\nfrom making such arrangements for supplying the public as seem best to\nhim; and secondly, it undertakes, by paternal legislation, to fix the\nremuneration that shall be given to the producer for his work, and to\nlimit the prices at which this work shall be furnished to the\nconsumer. There is no more equity in the government's undertaking this\nlimitation of the producer and protection of the consumer in the case\nof _books_ than there would be in that of bread or of beef.\n\nFurther, such an arrangement would be of benefit to neither the\nauthor, the public, nor the publishers, and would, we believe, make of\ninternational copyright, and of any copyright, a confusing and futile\nabsurdity.\n\nA British author could hardly obtain much satisfaction from an\narrangement which, while preventing him from having his American\nbusiness in the hands of a publishing house selected by himself, and\nof whose responsibility he could assure himself, threw open the use of\nhis property to any dealers who might choose to scramble for it. He\ncould exercise no control over the style, the shape, or the accuracy\nof his American editions; could have no trustworthy information as to\nthe number of copies the various editions contained; and if he were\ntenacious as to the collection of the royalties to which he was\nentitled, he would be able in many cases to enforce his claims only\nthrough innumerable lawsuits, and he would find the expenses of the\ncollection exceed the receipts.\n\nThe benefit to the public would be no more apparent. Any gain in the\ncheapness of the editions produced would be more than offset by their\nunsatisfactoriness: they would, in the majority of cases, be\nuntrustworthy as to accuracy or completeness, and be hastily and\nflimsily manufactured. A great many enterprises, also, desirable in\nthemselves, and that would be of service to the public, no publisher\ncould, under such an arrangement, afford to undertake at all, as, if\nthey proved successful, unscrupulous neighbors would, through rival\neditions, reap the benefit of his judgment and his advertising. In\nfact, the business of reprinting would fall largely into the hands of\nirresponsible parties, from whom no copyright could be collected.\n\nThe arguments against a measure of this kind are, in short, the\narguments in favor of international copyright. A very conclusive\nstatement of the case against the equity or desirability from any\npoint of view of such an arrangement in regard to home copyright was\nmade before the British Commission, in 1877, by Herbert Spencer. His\ntestimony is given in full in the _Popular Science Monthly_ for\nNovember, 1878, and February, 1879.\n\nThe recommendation had been made that, for the sake of securing cheap\nbooks for the people, the law should give to all dealers the privilege\nof printing an author's books, and should fix a copyright to be paid\nto the author that should secure him a \"fair profit for his work.\" Mr.\nSpencer objected that--\n\nFirst. This would be a direct interference with the laws of trade,\nunder which the author had the right to make his own bargains. Second.\nNo legislature was competent to determine what was \"a fair rate of\nprofit\" for an author. Third. No average royalty could be determined\nwhich could give a fair recompense for the different amounts and kinds\nof labor given to the production of different classes of books.\nFourth. If the legislature has the right to fix the profits of the\nauthor, it has an equal right to determine that of his associate in\nthe publication, the publisher; and if of the publisher, then also of\nthe printer, binder, and paper-maker, who all have an interest in the\nundertaking. Such a right of control would apply with equal force to\nmanufacturers of other articles of importance to the community, and\nwould not be in accordance with the present theories of the proper\nfunctions of government. Fifth. If books are to be cheapened by such a\nmeasure, it must be at the expense of some portion of the profits now\ngoing to the authors and publishers; the assumption is that book\nproducers and distributors do not understand their business, but\nrequire to be instructed by the state how to carry it on, and that the\npublishing business alone needs to have its returns regulated by law.\nSixth. The prices of the best books would in many cases, instead of\nbeing lessened, be higher than at present, because the publishers\nwould require some insurance against the risk of rival editions, and\nbecause they would make their first editions smaller, and the first\ncost would have to be divided among a less number of copies. Such\nreductions of prices as would be made would be on the flimsier and\nmore popular literature, and even on this could not be lasting.\nSeventh. For the enterprises of the most lasting importance to the\npublic, requiring considerable investment of time and capital, the\npublishers require to be assured of returns from the largest market\npossible, and without such security enterprises of this character\ncould not be undertaken at all. Eighth. Open competition of this kind\nwould, in the end, result in crushing out the smaller publishers, and\nin concentrating the business in the hands of a few houses whose\npurses had been long enough to carry them through the long and\nunprofitable contests that would certainly be the first effect of such\nlegislation.\n\nAll the considerations adduced by Mr. Spencer have, of course, equal\nforce with reference to open international publishing, while they may\nalso be included among the arguments in behalf of international\ncopyright.\n\nWith these views of a veteran writer of books may very properly be\nassociated the opinions of the experienced publisher, Mr. Wm. H.\nAppleton, who, in a letter to the New York _Times_ in 1872, says:\n\n\"The first demand of property is for security.... To publish a book in\nany real sense--that is, not merely to print it, but to make it well\nand widely known--requires much effort and large expenditure, and\nthese will not be invested in a property which is liable to be\ndestroyed at any moment. Legal protection would thus put an end to\nevil practices, make property secure, business more legitimate, and\ngive a new vigor to enterprise. Nor can a policy which is unjust to\nthe author, and works viciously in the trade, be the best for the\npublic. The publisher can neither afford to make the book so\nthoroughly known, nor can he put it at so low a price, as if he could\ncount upon permanent and undisturbed possession of it. Many valuable\nbooks are not reprinted at all, and therefere are only to be had at\nEnglish prices, for the same reason that publishers are cautious about\nrisking their capital in unprotected property.\"\n\nThe copy-book motto, \"Honesty is the best policy,\" fails often enough\nto come true (at least as to material results) in the case of the\nindividual, simply because his life is not always long enough to give\nan opportunity for all the results of his actions to be arrived at.\nThe community, however, in its longer life, is subject to the full\ninfluence of the certain though sometimes slow-working relations of\ncause to effect, relations which, among other things, bring out the\nessential connection between economics and ethics, and which show in\nthe long-run the just method to be the wise method. An enlightened\nself-interest finds out the advantage of equity. If the teaching of\nhistory makes anything evident, it is that in the transactions of a\nnation, honesty _pays_, even in the narrowest and most selfish sense\nof the term, and nothing but honesty can ever pay. Among the many\nclasses of interests to which this applies international copyright\ncertainly belongs.\n\nRejecting the Elderkin-Sherman suggestion of an open market for\nrepublishing as in no way effecting the objects desired; the\nBaldwin-Cox plan of giving protection only to books of which the type\nhad been set and the printing done in this country, as narrow in\nprinciple and uneconomic in practice; and the Bristed-Morgan\nproposition to extend the right of copyright without limitation or\nrestriction, as not giving sufficient consideration to the business\nrequirements, and as at present impracticable to carry into effect--we\nwould recommend a measure based upon the suggestion of the British\nCommission, coupled with one or two of the provisions that have been\nincluded in the several American schemes:\n\n1. That the title of the foreign work be registered in the United\nStates simultaneously with its publication abroad.\n\n2. That the work be republished in the United States within six months\nof its publication abroad.\n\n3. That for a limited term, say ten years, the stipulation should be\nmade that the republishing be done by an American citizen.\n\n4. That for the same term of years the copyright protection be given\nto those books only that have been printed and bound in this country,\nthe privilege being accorded of importing foreign stereotypes and\nelectrotypes of cuts.\n\n5. That, subject to these provisions, the foreign author or his\nassigns shall be accorded the same privileges now conceded to an\nAmerican author.\n\nI believe that, in the course of time, the general laws of trade would\nand ought to so regulate the arrangements for supplying the American\npublic with books that, if there were no restriction as to the\nnationality of the publisher or as to the importation of printed\nvolumes, the author would select the publishing agent, English or\nAmerican, who could serve him to best advantage; and that that agent\nwould be found to be the man who would prepare for the largest\npossible circle of American readers the editions best suited to their\nwants.\n\nThe foreign author would before long recognize that it was to his\ninterest to be represented by the publisher who understood the market\nmost thoroughly and who had the best facilities for supplying it. If\nEnglish publishers, settling here, could excel our American houses in\nthis understanding and in these facilities, they ought to be at\nliberty to do so, and it would be for the interest of the public that\nno hindrances should be placed in their way.\n\nThe experience of our American houses, however, who have had business\nwith English authors and publishers is that it takes some little time\nfor them to obtain a clear perception of the requirements of the\nAmerican market and of American readers, and of the very material\ndifferences existing between the status here and in Great Britain. And\nit would be my fear that, if the copyright were granted at once\nwithout restriction, there would be an interregnum of some years,\nduring which these authors and publishers were obtaining their\nAmerican education, before the American readers could obtain freely\nthe books they wanted in the editions they were willing to purchase.\n\nOur friends on the other side could not resist the temptation of\nexperimenting, before providing what was really wanted, as to how long\nour market would stand their expensive $7, $5, and $3 editions of\nbooks that we have been accustomed to buy here for $2.50, $2, and $1;\nand as a consequence, they would sell books by dozens or hundreds that\nought to be sold by thousands; their authors would receive an\ninconsiderable copyright, and the American public would be badly\nserved and would become indignant.\n\nBut if the channels of communication between the English authors and\ntheir American readers were once fairly established, as they would be,\nI think, under the arrangements suggested, it would not, I believe, be\npossible at a later date to interfere with them, even if all\nrestrictions were removed. When American readers were buying by\nthousands a suitable edition, at a moderate price, of a work by a\nstandard English author who was himself receiving a good return from\nhis enlarged sales, this author would be as little likely, at the\nexpiration of the ten years, to restrict those sales by insisting that\nhis work should be sold here in the costly and unsuitable English\nedition, as to stipulate that it should be sold here in a Russian\ntranslation. It is probable, also, that the including in the measure\nof these restrictions, even if but for a limited term of years, would\ngain for it some support that would be important for its success. It\nseems probable that, if the present conditions of trade are\nmaintained, American book-makers need not be especially troubled ten\nyears hence by the competition of books manufactured in England, and\nthat, if the various duties affecting the manufacture could be\nabolished, we could well spare the duty on books themselves.\n\nI can, however, imagine no state of affairs in which it would be\neconomical or desirable to insist upon two settings of type for a book\ndesigned for different groups of English-speaking readers; and the\nmore generally this first and most important part of the cost of a\nbook can be economized by being divided between the two markets, the\ngreater the advantage in the end to author, public, and publisher.\n\nA proposition will doubtless be made in the course of a year by the\nBritish Government for the appointment of an International Commission\nfor a fresh consideration of the subject, and our government ought to\nprepare for this International Commission by the early appointment of\na Home Commission to give due consideration to the several interests\ninvolved in the question, to collect again the different sets of\nopinions, and to harmonize these as far as practicable.\n\nBy the time our English friends are ready to talk the matter with us,\nwe ought to have informed ourselves definitely as to what kind of a\nmeasure is on the whole most desirable, and how much of this it is at\nthis present time practicable to carry into effect.\n\nThere has undoubtedly during the past ten years been a growth of\nenlightened public sentiment on the question, but I should still be\nindisposed to entrust its settlement to the House of Representatives,\nand should suppose that it could probably be handled to best advantage\nby the Senate in the shape of a treaty.\n\nIt is due to American publishers to explain that, in the absence of an\ninternational copyright, there has grown up among them a custom of\nmaking payments to foreign authors which has become, especially during\nthe last twenty-five years, a matter of very considerable importance.\nSome of the English authors who testified before the British\nCommission stated that the payments from the United States for their\nbooks exceeded their receipts in Great Britain. These payments secure\nof course to the American publisher no title of any kind to the books.\nIn some cases they obtain for him the use of advance sheets by means\nof which he is able to get his edition printed a week or two in\nadvance of any unauthorized edition that might be prepared. In many\ncases however, payments have been made some time after the publication\nof the works, and when there was no longer even the slight advantage\nof \"advance sheets\" to be gained from them.\n\nWhile the authorization of the English author can convey no title or\nmeans of defence against the interference of rival editions, the\nleading publishing houses have, with very inconsiderable exceptions,\nrespected each others' arrangements with foreign authors, and the\neditions announced as published \"by arrangement with the author,\" and\non which payments in lieu of copyright have been duly made, have been\nas a rule not interfered with. This understanding among the publishers\ngoes by the name of \"the courtesy of the trade.\" I think it is safe to\nsay that it is to-day the exception for an English work of any value\nto be published by any reputable house without a fair and often a very\nliberal recognition being made of the rights (in equity) of the\nauthor.\n\nIn view of the considerable amount of harsh language that has been\nexpended in England upon our American publishing houses, and the\nopinion prevailing in England that the wrong in reprinting is entirely\none-sided, it is in order here to make the claim, which can, I\nbelieve, be fully substantiated, that in respect to the recognition of\nthe rights of authors unprotected by law, their record has during the\npast twenty-five years been in fact better than that of their English\nbrethren. They have become fully aroused in England to the fact that\nAmerican literary material has value and availability, and each year a\nlarger amount of this material has had the honor of being introduced\nto the English public. According to the statistics of 1878, ten per\ncent of the works issued in England in that year were American\nreprints. The acknowledgments, however, of any rights on the part of\nAmerican authors have been few and far between, and the payments but\ninconsiderable in amount. The leading English houses would doubtless\nvery much prefer to follow the American practice of paying for their\nreprinted material, but they have not succeeded in establishing any\ngeneral understanding similar to our American \"courtesy of the trade,\"\nand books that have been paid for by one house are, in a large number\nof cases, promptly reissued in cheaper rival editions by other houses.\nIt is very evident that, in the face of open and unscrupulous\ncompetition, continued or considerable payments to authors are\ndifficult to provide for; and the more credit is due to those firms\nwho have, in the face of this difficulty, kept a good record with\ntheir American authors.\n\nOne London publisher in London made a custom for years of sending a\nliberal remittance to the author of the \"Wide, Wide World\" for each\nnew volume sent to him. But the competition of the unauthorized\neditions had proved so sharp that he told me he got no profit from his\npurchases, and did not see how he could continue them.\n\nThe fate of the author of \"Helen's Babies\" was still harder. Of his\nfirst book seven editions were issued by different British houses,\naggregating together an enormous sale, from which he received hardly a\npenny. For the advance sheets of the sequel to this one firm paid him\nL50. But so fierce was the scramble for it among the half dozen or\nmore publishers who hurried through their reprints from the American\njournal in which it was appearing as a serial, that one energetic\nhouse sent it out to the British public minus the concluding chapter,\nwhile another, still more enterprising, had the last chapter of his\nedition added by an English hand, and the moral of the story was\nentirely transformed.\n\nOf the books of Longfellow, Lowell, Holmes, Mrs. Prentiss, Mark Twain,\nDr. Mayo, Miss Phelps, Miss Alcott, Mrs. Stowe, Bayard Taylor, and\nmost of our more popular authors, there are, in like manner, various\nrival editions, and no one house, however good its intentions, can\nafford to make a practice of paying these authors, as its neighbors\ncannot be depended upon to respect its arrangements.\n\nOn the other hand, the leading English authors, like George Eliot,\nMiss Mulock, William Black, R. D. Blackmore, Wilkie Collins, Thomas\nHardy, Mrs. Alexander, Tyndall, Huxley, and very many others, have\nreceived and are receiving liberal payments from their American\npublishers, who are accustomed, as I have said, not to interfere with\neach others' purchases.\n\nIn past years there have been sharp criticisms on the other side of an\nAmerican habit of \"adapting\" and reshaping English books, so that the\nauthors, in addition to the grievance of receiving no compensation for\ntheir American editions, had the further cause for complaint that\nthese editions were not trustworthy and did not fairly represent their\nproductions. It was also charged that English material was\noccasionally \"annexed\" bodily by American authors, without any credit\nbeing given. For both sets of charges there have doubtless been\ngrounds, but the instances have certainly during the past quarter\ncentury grown very much fewer. Indeed, the last kind of appropriation\nwould to-day be almost impossible, as the knowledge of English current\nliterature is so thorough that detection would follow at once.\n\"Appropriated\" material could not be sold. In England, however, while\nAmerican literature is, as I have shown, beginning to be appreciated,\nit is not yet at all thoroughly known, and there is therefore much\nless risk in making use of it. As a matter of fact it has been so made\nuse of by literary hacks to a considerable extent, and there are some\namusing instances in which the English publishers and English critics\nhave been imposed upon by material that was _not_ original. Mr.\nRandolph, the publisher, relates how he was innocently led to reprint\nsome essays brought to him by an English friend, which seemed to him\nvery fresh and original, and which proved to have been taken bodily\nfrom one of Henry Ward Beecher's volumes. Mr. Randolph promptly called\nMr. Beecher's attention to his own felonious conduct, and handed him a\ncheck for the considerable amount due him for copyright on the sales.\n\nA translation by Charlton T. Lewis of Bengel's \"Gnomon of the New\nTestament\" was reprinted in London as the work of \"two clergymen of\nthe Church of England.\" Mr. Lewis' version was followed verbatim, with\nthe single exception of the omission of some Latin quotations.\n\nDr. S. Irenaeus Prime had sent to him a volume bearing the name of an\nEnglish author, with the inquiry as to whether, in his judgment, it\nwas likely to prove of interest for American readers. He found he was\nhardly in a position to give an impartial answer to the inquiry, as\nthe book was one of _his own_, for several editions of which the\nAmerican public had already shown a hearty appreciation.\n\nThese are but incidental examples of one kind of appreciation that has\nbeen accorded to American literary work, which may be complimentary\nbut can hardly be called satisfactory. I refer to them not because\nthey can be considered as any legitimate extenuation of similar\nAmerican misdeeds, for I do not admit that in questions of equity, the\n_tu quoque_ forms any argument or defence. They are worth mentioning\nonly for the sake of emphasizing to our English friends, what they\nhave not fairly appreciated, that there are at least two sides to the\nevil of the present state of things, and that the demoralization\nproduced by it has not been confined to our side of the Atlantic.\nThese instances of misappropriation are not of course fairly\nrepresentative of the English publishing or literary fraternity, any\nmore than similar American instances, which have formed the text of\nvarious English homilies, can be accepted as indicating the standard\nof literary and trade morality with us. We Americans simply say for\nourselves that the evils and demoralizing tendencies of the lack of\ninternational agreements are fully recognized by us, and that while\ncertain conditions of manufacturing have heretofore formed a\ntroublesome obstacle in the way of the establishing of such agreement,\nwe are glad to believe that this obstacle is now in a fair way of\nbeing overcome. In the meantime, we claim that, in the absence of law,\nour American publishers, especially those of the present generation,\nhave, of their own free will, given to English authors a large part of\nthe advantage that a law would have secured to them, and have done\nthis without any corresponding advantage of protection for\nthemselves.\n\nWe are also fully appreciative of the credit due to such of the\nEnglish houses as (in the face of perhaps greater difficulties) have\nmade similar efforts to do justice to American authors.\n\nOne of the not least important results to be looked for from\ninternational copyright is a more effective co-operation in their work\non the part of the publishers of the two great English-speaking\nnations. They will find their interest and profit in working together,\nand the very great extension that may be expected in the custom of a\njoint investment in the production of books for both markets will\nbring a very material saving in the first cost, a saving in the\nadvantage of which authors, publishers, and public will alike share.\n\nIt seems probable that the \"courtesy of the trade\" which has made\npossible the present relations between American publishers and foreign\nauthors is not going to retain its effectiveness. Within the last year\ncertain \"libraries\" and \"series\" have sprung into existence, which\npresent in cheaply-printed pamphlet form some of the best of recent\nEnglish fiction. Those who conduct them reap the advantage of the\nliterary judgment and foreign connections of the older publishing\nhouses, and, taking possession of material that has been carefully\nselected and liberally paid for, are able to offer it to the public at\nprices which are certainly low as compared with those of bound books\nthat have paid copyright, but are doubtless high enough for\nliterature that is so cheaply obtained and so cheaply printed.\n\nThese enterprises have been carried on by concerns which have not\nheretofore dealt in standard fiction, and which are not prepared to\nrespect the international arrangements or trade courtesies of the\nolder houses.\n\nTo one of the \"cheap series\" the above remarks do not apply. The\n\"Franklin Square Library\" is published by a house which makes a\npractice of paying for its English literary material, and which lays\ngreat stress upon \"the courtesy of the trade.\" It is generally\nunderstood by the trade that this series was planned, not so much as a\npublishing investment, as for purposes of self-defence, and that it\nwould in all probability not be continued after the necessity for\nself-defence had passed by. A good many of its numbers include works\nfor which the usual English payments have been made, and it is very\nevident that, in this shape, books so paid for cannot secure a\nremunerative sale. It seems safe to conclude, therefore, that their\npublication is not, in the literal sense of the term, a _business_\ninvestment, and that the undertaking is not planned to be permanent.\n\nA very considerable business in cheap reprints has also sprung up in\nToronto, from which point are circulated throughout the Western States\ncheap editions of English works for the \"advance sheets\" and \"American\nmarket,\" of which Eastern publishers have paid liberal prices. Some\nenterprising Canadian dealers have also taken advantage of the\npresent confusion between the United States postal and customs\nregulations to build up a trade by supplying through the mails\nreprints of _American copyright works_, in editions which, being\nflimsily printed, and free of charge for copyright, can be sold at\nvery moderate prices indeed.\n\nIt is very evident that, in the face of competition of this kind, the\npayments by American publishers to foreign writers of fiction must be\nmaterially diminished, or must cease altogether. These pamphlet series\nhave, however, done a most important service in pointing out the\nabsurdity of the present condition of literary property, and in\nemphasizing the need of an international copyright law. In connection\nwith the change in the conditions of book-manufacturing before alluded\nto, they may be credited as having influenced a material modification\nof opinion on the part of publishers who have in years past opposed an\ninternational copyright as either inexpedient or unnecessary, but who\nare now quoted as ready to give their support to any practicable and\nequitable measure that may be proposed.\n\nI have endeavored to give in the foregoing pages an outline sketch of\nthe history and present position of the question of international\ncopyright, and to briefly indicate some of the relations in which it\nstands to ethics and political economy.\n\nWe may, I trust, be able, at no very distant period, to look back\nupon, as exploded fallacies of an antiquated barbarism, the beliefs\nthat the material prosperity of a community can be assured by\nsurrounding it with Chinese walls of restrictions to prevent it from\npurchasing in exchange for its own products its neighbors' goods, and\nthat its moral and mental development can be furthered by the free\nexercise of the privilege of appropriating its neighbors' books.\n\n       *       *       *       *       *\n\n  FREE TRADE,\n\n  AS PROMOTING PEACE\n\n  AND\n\n  GOOD WILL AMONG MEN.\n\n     _A paper read before the New York Free Trade Club, Feb. 20, 1879,\n     by Charles L. Brace._\n\nTo the moralist, Free Trade is not most of all important as a means of\nproducing and distributing wealth, (though in that it be the most\nefficient) but rather as a portion of that movement of humanity which,\nreceiving its greatest impulse eighteen centuries ago, has been\nsteadily ever since removing prejudices, lightening burdens, doing\naway with abuses, and bringing together into one, different classes\nand peoples and races. Living under the influence of this great humane\nimpulse, we do not enough remember what effects it has already\naccomplished, what slow but permanent victories it has won, and what\nit proves itself adapted to win in the centuries to come.\n\nIt will better show us what changes await the world in such parts of\nits progress as relate to Free Trade, to note, briefly, a few of the\nimprovement wrought by the spirit of humanity and by right reason in\nEurope during the last thousand years.","title":"International copyright : $b considered in some of its relations to ethics and political economy","tradition":"philosophy-ethics","translated_text":null,"word_count":13507}