Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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AUTHORS, Rights of. Authors' rights, that is, the right of authors to control the publication of their intellectual or artistic productions, in order to prevent the reproduction of them by others, is of modern growth. The idea that proprietary rights in an original work were to be respected and defended, was not clear to the mind of antiquity. It was only after mechanical methods of multiplying books, etc., had been increased, and especially after the invention of printing, when the danger of unauthorized reproduction became greater, that the need of recognizing these rights was felt.


—This protection was first accorded, at the request of interested parties, in the form of privileges, and was originally granted more to benefit publishers than authors, more out of deference to the book trade than out of respect for writers. The earliest known privileges of this kind were granted during the last decade of the fifteenth century to certain Italian and German towns, especially Venice, Milan, Nuremberg, and to the bishop of Bamberg. The emperor Maximilian I. appointed, before the end of the century, a "general superintendent of printing houses in the holy Roman empire," who, with the office of censor of books, combined the authority to grant such privileges. Princes of the empire granted these privileges as well as the emperor. Frankfort and Leipsig became the most important marts in the German book trade. In the first, an imperial commission was appointed to oversee the trade and protect the rights of publishers; in the second, the government of the elector of Saxony performed the same office.


—Until the French revolution, practice held firmly to the privilege theory in France, though men had long since penetrated more profoundly into the universally just character of authors' rights. In most of the German states we find them recognized in the first decades of the present century. The German confederation first opened the way for all Germany to a loftier understanding of this question.


—Privileges became, by degrees, universal, and were accorded to every one who asked for them. This implied an acknowledgment that the privilege should not be granted at all. Men became conscious that it merely protected a natural right, but were embarrassed in formulating that right. Authors spoke, it is true, of literary property, but even if the word property can be used in that wider sense, according to which everything pertaining to a man is called property, still it was essentially a different right from that of property proper, that is, the control of a person over a material object; and after a closer examination it was seen that nothing was gained by the expression and nothing explained by it. An intellectual production can not be disposed of by a person, as a thing is by its owner. The author does not wish to keep his work exclusively to himself as the owner of an article does who asserts his property in it to the exclusion of the whole world. He wants to publish it, and the very control over this publication is the main interest of his right. But when he publishes it, the right of society to the work also begins.


—Besides, it came to be understood that publishers should be relegated to a secondary rank, and that their rights in a work and in its publication should be derived from the author. It was seen that the author could not be lost sight of, even after the transfer of his right to the publisher; and the continuance of his right was measured by the life of the author. In this way arose the understanding of the author's right as such. The recognition of the author in his work, of the creator in his creation, was acknowledged at length as the very essence of this right.


—English jurisprudence was the first to recognize this right, which it called copyright; and understood by the term the exclusive right of the author to the reproduction of his works. A law of queen Anne, in 1710. confirmed this right and at the same time limited it to 21 years. Many English jurists were inclined previously to go further and to declare the author's rights perpetual, like that of property. But they were unable to make this view prevail. From 1837 to 1842, this subject was warmly debated in the English parliament. The result was the introduction of a law which extended the term of copyright to 42 years, or longer if the author lived. But the limit as to time remained.


—Modern legislation in different countries is now becoming more uniform on this subject. All protect the author's right as long as the author lives, and recognize the element of personality in this right in contradistinction to the ownership of material things. All extend the protection a little beyond his death. But as soon as the time expires the work becomes common property according to nearly all recent legislative enactments. This twofold provision, first for the author, second for society, answers completely to the character of an intellectual work. The one-sided and exclusive care for the author and legal representatives came into irreconcilable conflict with the rights and interests of the society of intellect. What had once been given by the author himself to his nation and the world, and made the common property of all mankind, should not be withdrawn nor destroyed by his heirs. How would it fare with culture if the heirs of Shakespeare or Goethe, or the heirs of a thinker like Spinoza or Bacon, through monkish or pietistic narrowness, could prevent a new edition of their works? Just as little to be approved is the opposite one-sidedness, which pays no regard to the merits of the author, and at once declares his work a lawful prize for everyone. The reconciliation of the two views is to be found in the recognition and limitation of the author's rights.


—In Germany authors' rights belong to the few subjects which the confederate legislation has taken up. The decree of 1837 assured their protection for ten years at least. But in 1845 this protection "for literary productions and works of art" was extended to the death of the author and thirty years after. The Prussian law of June 11, 1837, and that of Bavaria April 15, 1840, had preceded the confederation in this direction.


—A peculiar difficulty is connected with the limitation of this right by states. The nature of intellectual productions is such that they can not be confined within territorial limits. Literary and artistic communication spans the earth. Productions of the mind are given to the human race. If the author, therefore, is to find real protection, it is not enough that the state in which he lives and where his work appears should protect him, and prevent its subjects from reprinting the same. The literature of a country has no protection if beyond its borders the robber work of republishing can go on undisturbed. During recent years a series of treaties on this subject have been either the subject of negotiation or have been concluded. France and England are especially active in this direction, and to some extent Prussia and Austria. This is another problem to be solved by international law.*17


Notes for this chapter

In the United States any citizen of the country, or a resident thereof, being the author of a book, map, chart, etc., may secure a copyright in the same by complying with the requirements of the law. The terms for which the copyright may be obtained is 28 years from the time of recording the title; at the expiration of that period, the author, if living, and his widow, if he be dead, may re-enter for 14 years additional.

Footnotes for BADEN

End of Notes

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