PROPERTY, Literary. Under the healing of "Copyright" (see vol. i., p.642, Mr. Macleod has given a comprehensive summary of the growth of the conception of literary property, and a specification of the enactments in Great Britain under which its status has been defined and regulated. He has also made reference to the copyright acts of some of the other states of Europe, as they stood twenty years ago. We here propose to supplement Mr. Macleod's statistics with such later data as can now be obtained, to include the specification (not to be found in Mr. Macleod's article) of the copyright acts of the United States, and also to present some of the questions that have arisen concerning literary property between nations, and to describe the conventions in force or under consideration for international copyright.
—During the past twenty years, there has been a very considerable increase in the extent of international literary exchanges, and a fuller recognition, at least in Europe, of the propriety and necessity of bringing these under the control of international law. Americans also are beginning to appreciate how largely the intellectual development of their nation must be affected by all that influences the development of the national literature, and to recognize the extent to which such development must depend upon the inducements extended to literary producers, as well as upon the character of the competition with which these producers have to contend.
—Literary property is defined by Drone as "the exclusive right of the owner to possess, use and dispose of intellectual productions", and copyright, as "the exclusive right of the owner to multiply and to dospose of copies of an intellectual production".
—The English statute (5 & 6 Victoria) defines copyright to mean "the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the word is herein applied."
—The American statute (U. S. Rev. Stat., sec.4952) speaks of copyright in a book as "the sole liberty of printing, reprinting, publishing, * * and vending the same".
—The French constitutional convention adopted, in January, 1791, a report prepared by Chopelin, which declares that: La plus sacré, la plus inattaquable, et, si je puis parler ainsi, les plus personelle ds touies les propriétés, est l'ovrage, fruit de las pensés d'un ecrivain. And in the decree rendered by the convention, July 10, 1793, the preamble (written by Lakanal) declares that de toutes les propriétés, lamoins susceptible de contestation, c'est, sans contrédit, celle des productions du génis: et si quelque chose peut étonner, c'est qu'il ait fallu reconnaitre cette propriété assurer son libre exercice par uns loi positive; c'est qu'une aussi grande revolution que la notre ail eté nécessaire pour nous ramener sur ce point, comme sur lout d'autres, aux simples éleménts de la justice la plus commune.
—The act relating to copyright, adopted by the Reichstag of Germany, in April, 1871, declares that Das Recht, ein Schriftwerk auf , mechanischem Wegs zu verviel faltigen, steht dem Urheber desselben ausschliesstich zu.
—Coppinger defines copyright as "the sole and exclusive right of multiplying copies of an original work or composition," and says that the right of an author "to the productions of his mental exertions, may be classed among the species of property acquired by occupancy; being founded on labor and invention."
—Francis Lieber says(in an address delivered April 6, 1868), "The main roots of all property whatsoever are appropriation and production. * * Property * * precedes government. If a man appropriates what belongs to no one (for instance, the trunk of a tree), and if he produces a new thing (for instance, a canoe) out of that tree, this product is verily his own, * * and any one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber. * * The whole right of property * * rests on appropriation and production: and I appeal to the intuitive conviction of every thinking man to say whether a literary work, such as Baker's description of his toilsome journeys, or Goethe's Faust, is not a production in the fullest sense of the world, even more so than a barrel of herrings, which have been appropriated in the North sea, and pickled and barreled by the fishermen; and whether any one has a right to meddle with this property by production, any more than you or I with the barrel of herrings."
—Drone says: "There can be no property in a production of the mind unless it is expressed in a definite form of words. But the property is not in the words alone; it is in the intellectual creation, which language is merely a means of expressing and communicating." It is evident that copyright is in its nature akin to patent right, which also represents the legal recognition of the existence of property in an idea or a group of ideas or the form of expression of an idea.
—International patent rights have, however, been recognized and carried into effect more generally than have copyrights. The patentee of an improved toothpick would be able to secure today a wider recognition of his right than has been accorded to the author of "Uncle Tom's Cabin" or of "Adam Bede."
—Almost the sole exception to this consensus of civilized opinion on the status of literary property is presented by Henry C. Carey. He took the position that "Ideas are the common property of mankind. Facts are everybody's facts. Words are free to all men. * * Examine Macaulay's 'History of England,' and you will find that the body is composed of what is common property." Of Prescott, Bancroft and Webster he says: "They did nothing but reproduce ideas that were common property." Of Scott and Irving, "They made no contribution to knowledge." ("Letters on Copyright," Phila., 1854.) Therefore, the author of a work has no right of property in the book he has made. He took the common stock and worked it over: and one man has just as good a right to it as another. If the author is allowed to be the owner of his works, the public are deprived of their rights. Property in books is robbery. But this is simply a partial or specific application of the well-known formula of Proudhon: "Property is robbery," a theory which it is not necessary to discuss in this paper.
—The conception of literary property was known to the ancients. A recompense of some sort to the author was regarded as a natural right, and any one contravening it as little better than a robber. Klostermann says: "The first germs of a recognition of a property in thought are to be found in the agreements which authors entered into with the booksellers for the multiplication and sale of copies of their works,and in the custom to treat as unlawful any infringement upon the bookseller's right in a work which had been so transferred to him. The booksellers among the Romans succeeded, through the use of slave labor, in producing duplicates of their manuscripts at so low a cost, that the use and productions, centuries later, of the first printing presses, were hardly cheaper." Martial records, in one of his epigrams, that the edition of his "Xenii" could be bought from the bookseller Tryphon for four sesterces, the equivalent of about twelve and a half cents. He grumbles at this price as being too high, and claims that the bookseller would have been able to get a profit from a charge of half that amount. This poet appears to have had not less than four publishers in charge of the sale of his works, one of whom was a freedman of the second Lucensia. The latter issued a special pocket edition of the "Epigrams." The poet prepared the advertisements for the booksellers, putting these in the form of epigrams, but not neglecting to specify the form and price of each book, as well as the place where it was offered for sale. Horace refers to the brothers Sosius as his publishers, but complains that while his works brought gold to them, for their author they earned only fame in distant lands and with posterity. Terence sold his "Eunuch us" to the Ædiles, and his "Hecyra" to the player Roscius; while Juvenal reports that Statius would have starved if he had not succeeded in selling to the actor Paris his tragedy of Agave. "Such sales," says Coppinger, "were considered as founded, "were considered as founded upon natural justice. No man could possibly have a right to make a profit by the sale of the works of another without the author's consent. It would be converting to his own emolument the fruits of another's labor."
—It is apparent from these and from similar references, that under the Roman empire authors were in the habit of transferring to booksellers for such consideration as they could obtain, the right to duplicate and to sell their works, and that, under the trade usages, they were protected in so doing. There was no imperial act covering such transfers; and it does not appear that in any division of the Roman law was there provision for the exclusive right in the "copy" of literary material.
—It is nevertheless the case that the Roman jurists interested themselves in the question of immaterial property, but it was apparently rather as a theoretical speculation than as a study in practical law. Some of the earlier discussions as to the nature of property in ideas appear to have turned upon the question as to whether such property should take precedence over that in the material which happened to be made use of for the expression of the ideas. The disciples of Proculus maintained that the occupation of alien material so as to make of it a new thing, gave a property right to him who had so reworked or reshaped it; while the school of Sabinus insisted that the ownership in the material must carry with it the title to whatever was produced upon the material. Justinian, following the opinion of Gaius, took a middle ground, pointing out that the decision must be influenced by the possibility of restoring the material to its original form, and more particularly by the question as to whether the material, or that which had been produced upon it, was the more essential. This opinion of Gaius appears to have had reference to the ownership of a certain table upon which a picture had been painted, and the decision was in favor of the artist. This decision contains an unmistakable recognition of immaterial property, not, to be sure, in the sense of a right to exclusive reproduction, but in the particular application, that, while material property depends upon the substance,immaterial property, that is to say, property in ideas, depends upon the form.
—For the centuries following the destruction of the Roman empire, during which literary undertakings were confined almost entirely to the monasteries, the Roman usage, under which authors could dispose of their works to booksellers, and the latter could be secured control of the property purchases, was entirely forgotten. No limitation was placed on the duplication of works of literature. According to Wächter (Das Verlugercht, 1857), it was even the case that by a statute of the university of Paris, issued in 1228, the Parisian booksellers (who were in large part dependent upon the university) were enjoined to extend, as far as practicable, the duplication of works of a certain class. The business of bookseller at that time consisted as much in the renting out for reading and copying of authentic manuscript versions as in the sale of manuscript copies. In the University of Paris, as well as in that of Bologna, a statute specified the least number of copies, usually 120, of a manuscript that a bookseller must keep in stock, and the prices for loaning manuscripts were also fixed by statute. The difficulty and expense attending the reproduction of manuscripts was in every case considerable(much greater than in the early days of the Roman empire) and when, therefore, an author desired to secure a wide circulation for his work, he came to regard the reproduction of copies, not as a reserved right and source of income, but as a service to himself, which he was very ready to facilitate and even to compensate.
—Throughout the middle ages, whatever immaterial property in the realms of science, art or technics, obtained recognition and protection, was held in ownership, not by individuals, but by churches, monasteries or universities. Before the invention of printing, the writers of the middle ages were fortunate if, without a ruinous expenditure, they could succeed in getting their productions before the public. The printing press brought with it the possibility of a compensation for literary labor. Very speedily, however, the unrestricted rivalry of printers brought into existense competing and unauthorized editions, which diminished the prospects of profit, or entailed loss for the authors, editors and printers of the original issue and thus discouraged further similar undertakings.
—As there was no general enactment under which the difficulty could be met, protection for the authors and their representatives was sought through special "privileges," obtained for separate works as issued. The earliest privilege of the kind was, according to Putter (Beiträge zum deutschen Staats-und Fürstenrecht), that conceded by the republic of Venice, Jan.3, 1491, to the jurist Peter of Ravenna, securing to him and to the publishers selected by him, the exclusive right for the printing and sale of his work "Phœnix." No term of years appears to have been named in this "privilege" It appears, however, that most of the early Italian enactments in regard to literature were framed, not so much with reference to the protection of authors, as for the purpose of inducing printers (acting also as publishers) to undertake certain literary enterprises which were believed to be of importance to the community.
—The republic of Venice, the dukes of Florence, and Leo X. and other popes, conceded at different times to certain printers the exclusive privilege of printing, for specified terms, rarely apparently exceeding fourteen years, editions of certain classic authors. At this time, when the business of the production and the distribution of books was in its infancy, such undertakings must have been attended with exceptional risk, and have called for no little enlightened enterprise on the part of the printers. It is fair to assume that the princes conceding these privileges were not interested in securing profits for the printers, but had in mind simply the encouragement, for the benefit of the community, of literary ventures on the part of the editors and printers.
—After Italy, it is in France that we find the next formal recognition, on the part of the government, of the rights of property in literature. From the reign of Louis XII. to the beginning of the sixteenth century, it became usage for the publisher (at that time identical with the printer) before undertaking the publication of a work, to obtain from the king an authorization, or letters patent, the term of which appears to have varied according to the nature of the work and the mood of the monarch or of the advising ministers. At the close of nearly all of the volumes issued previous to the revolution, will be found printed: Les Lettres du Roi, addressed, A nos ames at feaux conscillers, les gens lenons nos cours de Parlement * * et autres nos justiciers, et qui font defenses á tous libraires et imprimeurs et autres personnes de quelque qualité et condition qu'elles soient, d'introduire aucun impression étrangére (that is to say, any unauthorized reprint) dans aueun lieu de notre obeissance.
—These letters were in the first place obtained, as in Italy, for the protection of special editions of the classics, but very speedily the native literature increased in importance, and the list of original works came to outnumber that of the reprints of ancient authors. The rights specified in the letters were in the first place nearly always vested in the printers, but it is evident, that, the longer the terms of the royal concessions, the larger the remuneration that could be looked for from the work, and the greater the price that the printer would be in a position to pay to author or writer. It is also to be noted that the terms granted to original French works were usually longer than those for the new editions of the classics or of reprints of devotional works.
—According to Lowndes, the penalties for infringing copyright were, until the revolution, heavier in France than anywhere else in Europe. It was argued that such infringement constituted a worse crime than the stealing of goods from the house of a neighbor, for in the latter case some negligence might possibly be imputed to the owner, while in the former it was stealing what had been confided to the public honor.
—The status of literary property was further recognized and defined by the so-called Ordinances de Moulines of Henry II., in 1556, the declaration o f Charles IX., in 1571, and the letters patent of Henry III., in 1576, but the character of the methods of granting and defending copyrights was not changed in any material respects.
—By the decree of the national assembly of Aug.4, 1789, all the privileges afforded to authors and owners of literary property by the various royal edicts were repealed. In July, 1793, the first general copyright act was passed, under which, protection was conceded to the author for his life, and to his heirs and assigns for ten years thereafter.
—The imperial act of 1810 extended the term to twenty years after the author's death, for widow or children, the term remaining at ten years if the heirs were further removed. In 1872 the act now (1883) in force was passed. Under this the term was extended to fifty years from the death of the author. The provisions of the act were also extended to the colonies. Foreigners and Frenchmen enjoy the right equally, and no restriction is made as to the authors being residents at the time the copyright is taken out. It is, further, not necessary that the first publication of the work should be made in France. In case the work be first published abroad, French copyright may subsequently be secured by depositing two copies at the ministry of the interior in Paris, or with the secretary of the prefecture in the departments. The provisions of the statute affecting foreigners may be modified by any convention concluded between France and a foreign country.
—The earliest German enactment in regard to literary property was the "privilege" accorded in Nuremberg, in 1501, to poet Conrad Celtes, for the works of the poet Hroswista (Helena von Rossow, a nun of the Benedictine cloister of Gardersheim). As this author had been dead for 600 years, the privilege was evidently not issued for her protection, but must rather have been based upon the idea of encouraging Celtes in a praiseworthy (and probably unremunerative) undertaking. Between the years 1510 and 1514 we find record of "privileges" issued by the emperor Maximilian in favor of the sermons of Geiler of Kaisersberg, and the writings of Schottius, Stabius and others. In 1534 Lutehr's translation of the Bible was issued in Wittenberg under the protection of the "privileges" of the elector of Saxony.
—Penalties for piratical reprints were sometimes specified in the special "privileges" but from 1660 we find certain general acts under which privileged works could obtain protection, and their owners could secure against reprinters uniform penalties. Decrees of this class were issued by the city of Frankfort in 1657, 1660 and 1775, by Nuremberg in 1623, by the electorate of Saxony in 1661, and by the imperial government in 1646. There were also enactments in Hanover in 1778, and in Austria in 1795. All of the above specified acts expressly permitted the reprinting of "foreign" works, that is, of works issued outside of the domain covered by the enactment. Piratical reprinting between the different German states increased, therefore, with the growth of the literature, and although the injury and injustice caused by it were recognized, and measures for its suppression were promised by the emperors Leopold II. and Francis II. (1790 and 1792), nothing in this direction could be accomplished by the unwieldy imperial machinery.
—In 1794 legislation was inaugurated in the Prussian parliament, which was accepted by the other states of Germany (excepting Wurtemberg and Mecklenburg), under which all German authors and foreign authors whose works were represented by publishers taking part in the book fairs in Frankfort and Leipzig, were protected throughout the states of Germany against unauthorized reprints.
—According to Klostermann these enactments were only in small part effective, and it was not until forty years later, that, under the later acts of the new German confederacy, German authors were able to secure throughout Germany a satisfactory protection. It is nevertheless, the case that to those who framed the Berlin enactment of 1794 must be given the credit of the first steps toward the practical recognition of international copyright.
—The copyright statute now in force in Germany, including Elsass and Lothringen, dates from 1871. The term is for the life of the author and for thirty years thereafter. The copyright register for the empire is kept at Leipzig, The protection of the law is afforded to the works of citizens, whether published inside or outside of the empire, and also to works of aliens, if these are published by a firm doing business within the empire.
—In Italy literary copyright rests upon the statute of 1865. The term is for the life of the author and for forty years after his death, or for eighty years from the publication of the work. After the expiration of the first forty years, however, or after the death of the author, in case this does not take place until more than forty years have elapsed since the publication, the work is open to publication by any one who will pay to the author of the copyright a royalty of 5 per cent, of the published price. It is necessary to deposit two copies of the work, together with a declaration in duplicate, at the prefecture of the province. No distinction is made between citizens and aliens, and the provisions of the law are applicable to the authors of works first published in any foreign country, between which and Italy there is no copyright treaty.
—In Austria the term of literary copyright is for thirty years after the author's death, and the other provisions of the act in force are similar to those of the German statute.
—In Holland and Belgium, copyright, formerly perpetual, is now limited to the life of the author and twenty years thereafter.
—In Denmark, copyright, formerly perpetual, is now limited to thirty years from the date of publication.
—In Sweden, copyright was also, until recently, perpetual. By the act of 1877, however, it now endures for the life of the author and for fifty years thereafter. The provisions of the law are made applicable to the works of foreign authors only on conditions of reciprocity.
—In spain, copyright rests on the act of 1878, and endures during the life of the author and for eighty years thereafter. If the right be assigned by the author, and the author leave no heirs, it belongs to the assignees for eighty years from the author's death. In the case, however, of heirs being left by the author, the assignment holds good for but twenty-five years, after which the ownership reverts to the heirs for the remaining fifty-five years of the term. Owners of foreign works will retain their rights in Spain, provided they adhere to the law of their own country. The copyright registry is kept at the ministry of the interior, and to perfect the registry a deposit of three copies of the work is required. The Spanish government is authorized to conclude copyright treaties with foreign countries on the condition of complete reciprocity between the contracting parties. Under such an arrangement any author or his representative who has legally secured copyright in the one country would be, without further formalities, entitled to enjoy it in the other.
—In Russia, copyright endures for the life of the author and for fifty years thereafter.
—In Greece the term is fifteen years from publication.
—In Japan the law of copyright dates from 1874. Manuscript must be examined by the department of the interior, and if found free from disloyal opinions or any matter calculated to injure public morals, a certificate of protection is promptly issued. Three copies of the work must be deposited in the department, and the fees amount to the value of six more copies.
—In China, notwithstanding the large body of national literature, no laws have been enacted for the protection of literary property.
—In Great Britain the act of 1842, now (1883) in force, provides as follows: Copyright in a book endures for forty-two years from the date of publication, or for the author's life, and for seven years after, whichever of these two terms may be the longer. The first publication of the work must be in Great Britain. The copy can be taken out by any author or owner who is a British citizen, or by an alien who may at the time of the first publication be within the British dominions (in any portion of the British empire). The work must be registered in the records of the stationers' company, and five copies must be delivered to certain institutions specified. A bill is now, however, before parliament, framed mainly upon the recommendations of the copyright commission of 1878, which provides that the term of copyright for books shall be fifty years; that in the case of British subjects copyright extends to all the British dominions; that aliens, wherever resident, shall be entitled to British copyright on registering their work in that part of the British dominions where it was first published.
—The history of the status of literary property in England prior to 1863, is given in detail in the article of Mr. Macleod (vol. i., p. 642). It is in England that the nature and basis of copyright have received the most thorough consideration, and the English opinions (although representing very wide differences among themselves) have been the most important contributions to the discussion of the subject. It is sufficient to note here that the first record of the recognition of property in literature appears in 1558 (that is, half a century later than in France or Germany) when the earliest entry of titles was made on the register of the company of stationers in London. As early as 1534, however, Henry VIII, granted to the university of Cambridge the exclusive right of printing certain books in which the crown claimed a prerogative. Afterward, patents cum privilegio were granted to individuals. Prior to 1710 there was no legislation creating literary property or confining ownership, nor any abridging its perpetuity or restricting its enjoyment. It was understood, therefore, to owe its existence to common law, and this conclusion, arrived at by the weightiest authorities, remained practically unquestioned until 1774. For the provisions of the act of 1710(8 Anne), the details of the cases of Miller vs. Taylor (1769), and Donaldson vs. Becket (1774), the discussions concerning these cases, with the opinions of Lord Mansfield, Lord Camdon and Justice Yates, and also for the debate attending the framing of the act of 1842, with the argumens of Talfourd, Lord Campbell, Justice Coleridge, Lord Macanlay and Thomas Hood, the reader is referred to Mr. Macleod's paper.
—In the United states the first act in regard to copyright was passed in Connecticut in January, 1783. This was followed by the Massachusetts act of March, 1783, that of Virginia in 1785, and New York and New Jersey in 1786. These acts were due more particularly to the efforts of Noah Webster, and their first service was the protection of his famous "Speller." Webster journeyed from state capital to state capital to urge upon governors and legislatures the immediate necessity of copyright laws, and under his persistency measures had also been promised and in part framed in Rhode Island, Pennsylvania, Delaware, Maryland and South Carolina. The necessity for state laws on the subject was, however, obviated by the United States statute of 1790. In creating a public and legislative opinion which made such a law possible, Webster's writings and personal influence were all important.
—Previous to the adoption of the federal constitution, in 1787, a general copyright law was not within the province of the central government, and in order to encourage the states in the framing of copyright legislation, a resolution, proposed by Madison, was adopted in congress, in May, 1783, recommending to the states the adoption of laws securing copyright for a term of not less than fourteen years. The state acts passed prior to this resolution had conceded a term of twenty-one years. The act of 1790 provided for the shorter time suggested by Madison. The act of 1831 extended the fourteen years to twenty-eight, with privilege to the author, his widow or children, of renewal for fourteen years more. The act of 1834 provided that all deeds for the transfer or assignment of copyright should be recorded in the office in which the original entry had been made. In 1846 the act establishing the Smithsonian Institution required that one copy of the work copyrighted should be delivered to that institution, and one copy to the library of congress. This provision was repealed in 1859, by a statute which transferred to the department of the interior the custody of the publications and records. In 1865 the copies were again ordered to be delivered to the library of congress. In 1861 an act was passed, providing that cases of copyright could, without regard to the amount involved, be appealed to the supreme court.
—The act now in force in the United States, is that of July, 1870, (See Rev. Stat., secs. 4948-4971). This provides that the business of copyrights shall be under charge of the librarian of congress; that copyrights may be secured by any citizen of the United States or resident therein; that the term of copyright shall be twenty-eight years, with the privilege of renewal for the further term of fourteen years, by the author if he be still living and continues to be a citizen or a resident, or by his widow or children if he be dead; that two copies of the work shall be deposited in the library of congress; that the work must first be published in the United States, and that the original jurisdiction of all suits under the copyright laws shall rest with the United States circuit courts.
—Under the present interpretation of the courts in both the United States and Europe, copyright in published works exists only by virtue of the statutes defining (or establishing) it, while in works that have not been published, such as compositions prepared exclusively for dramatic representation, the copyright obtains through the common law. Copyright by statute is of necessity limited to the term of years specified in the enactment, while copyright at common law has been held to be perpetual. The leading English decisions have before been referred to. The United States decision, which still serves as a precedent on the point of the statutory limitation of copyright, is that of the United States supreme court in 1834, in the case of Wheaton vs. Peters. This decision involved the purport of the United States law of 1790, and the determination of the same question that had been decided by the house of lords in 1774, viz., whether copyright in a published work existed by the common law, and, if so, whether it had been taken away by statute. The court held that the law had been settled in England, the act of 8 Anne having taken away any right previously existing at common law; that there was no common law of the United States; and that the copyright statute of 1790 did not affirm a right already in existence, but created one. Justices Thompson and Baldwin, in opposing the decision of the four justices concurring in the decision, took the ground that the common law of England did prevail in the United States, and that copyright at common law had been fully recognized, and that, even if it were admitted that such copyright had been abrogated in England by the statute of Anne, such statute had of course no effect either in the colonies or in the United States. "These considerations," says Drone, "deprive Wheston vs. Peters of much of its weight as an authority." In 1880, in the case of Putnam vs. Pollard; it was claimed by the plaintiff that the decision in Wheaton vs. Peters could in any case only make a precedent for Pennsylvania; that the English common law obtained in the state of New York, and could not have been affected by the statute of Anne: but the New York supreme court decided that Wheaton vs. Peters constituted a valid precedent.
—What may be the Subject of Copyright. In order to acquire a copyright in a work, it is necessary that it should be original. The originality can, however, consist in the form or arrangement as well as in the substance. Corrections and additions to an old work, not the property of the compiler, can also secure copyright. The copyright of private letters forming literacy compositions, is in the composer and not in the receiver. (Oliver vs. Oliver, Percival vs. Phipps et al., Story's Com.)
—The English statute, 5 and 6 Vict., defines "book" "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan separately published." The right of property in lectures, whether written or oral, is now confirmed by statute, the most important English decision on the point being that of Abernethy vs. Hutchinson, and American precedents being Bartlett vs. Crittenden, Keene vs. Kimball, and Putnam vs. Meyer: Copyright can be secured for original arrangements of common material, or novel presentations of familiar facts. In Putnam vs. Meyer the New York supreme court held that certain tabular lists of anatomical names, arranged in a peculiar and arbitrary manner for the purpose of facilitating the work of memorizing, were entitled to protection.
—Abridgments and abstracts, which can be called genuine and just, are also entitled to copy right. (Lawrence vs. Dana, Gray vs. Russell et al.) According to English precedent, copyright can not exist in a work of libelous, immoral, obscene or irreligious tendency. There is no record in the United States of a case in which the question of copyright in irreligious books has been considered. Drone points out that the uniform construction of the law relating to blasphemy is evidence of the large freedom of inquiry and discussion allowed in religious matters. On this point the opinion of Justice Cooley (People vs. Ruggles, 8 Johns. Rep., N. Y.) is worth citing. "It does not follow because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogma. Its 'divine origin and truth' are not so far admitted in the law as to preclude their being controverted. To forbid discussions on this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press on a point which, with many, would be regarded as the most important of all." In quoting a similar opinion of Justice Story, Drone concludes that "there appears to be no good reason why valid copyright will not rest in a publication in which are denied any or all of the doctrines of the Bible; provided to motives and manner of the author be such as not to warrant the finding of a case of blasphemy or immorality."
—Several of the questions concerning the status and the defense of literary property in this country are only now beginning to come into discussion. The literature of the country is still so young that as yet but a small portion of it has survived the statute term of copyright. From the present time, however, as the terms of works which have established a position as classics, begin in part or in whole to expire, we can look forward to a larger number of issues and of suits connected with alleged infringements of copyright.
—The case of Putnam vs. Pollard, decided in the New York supreme court in 1881, covered some points that appear to have not before received consideration. The defendants had reprinted some fragmentary and unrevised portions of the works of Washington Irving, on which the copyright had expired, and offered these for sale under the designation of "Irving's Works." The plaintiff had for a number of years used this title to describe the authorized, complete and revised writings of this author in the shape in which he had finally prepared them for posterity. The plaintiff sought to enjoin the sale, under the above title, of the fragmentary work, on the several grounds that it misled the public, caused injury to the literacy reputation of Irving, and interfered with the property rights of Irving's heirs. The courts decided, however, that as long as the volumes in question contained nothing but material which had actually been written by Irving, it was not unlawful to designate them as "Irving's Works," even though the writings should not be in complete or in their final form; and the injunction was denied. The question involved was, it will be noted, one of trade-mark, and the decision took the ground that an author's name, combined with the term "works," does not constitute a trade-mark. Under this ruling, it might be proper to add to the title pages of volumes of "fragments" sold as "works," the caution "Caveat emptor."
—The four theories which have resulted from this discussion of a century, are thus summarized by Drone: 1. That intellectual productions constitute a species of property founded in natural law, recognized by the common law, and neither lost by publication nor taken away by legislation; 2. That an author has, by common law, an exclusive right to control his works before, and not after, publication; 3. That this right is not lost by publication, but has been destroyed by statute; 4. That copyright is a monopoly of limited duration, created and wholly regulated by the legislature, and that an author has, therefore, no other title to his published works than that given by statute.
—The first country to take action in regard to international copyright was Prussia, which, in 1836, passed an act conceding the protection of the Prussian statute to the writers of every country which should grant reciprocity. In 1837 a copyright convention was concluded between the different members of the German confederation.
—This was followed by the English act of 1838, 1 and 2 Vict., c. 59, amended and extended by 15 Vict., c. 12. This act provided that her majesty might, by order in council, grant the privilege of copyright to authors of books, etc., first published in any foreign country to be named in such order, provided always that "due protection had been secured by the foreign power so named in such order in council, for the benefit of parties interested in works first published in the British dominions."
—Different provisions may be made in the arrangements with different countries. Under the general copyright act, no right or property is recognized in any book, etc., not first published in her majesty's dominions. Hence, British as well as foreign authors first publishing abroad, have no protection in Great Britain unless a convention has been framed, under the international copyright act, between Great Britain and the country in which the publication is made. It may be noted here, that the condition of "first publication" which obtains in the statutes of nearly all countries, has been held to be complied with by a simultaneous publication in two or more countries.
—Under this international copyright act, Great Britain has entered into copyright conventions with the following countries: with Saxony, in 1846; France, in 1851; Prussia, in 1855; states of Germany comprised in the German empire: Anhalt, in 1853; Brunswick, in 1849; Hamburg, in 1853; Hanover, in 1847; Oldenburg, in 1847; Hesse-Darmstadt, in 1862; Thuringian Union, in 1847. (It is not clear what effect the absorption of these states into the empire may have had upon their several copyright treaties.) With Spain, in 1857 (temporarily renewed in 1880); Belgium, in 1855; and Sardinia, in 1862 (confirmed in 1867 by the kingdom of Italy).
—The conventions with the several German states contain essentially identical provisions, which are as follows: "The author of any book to whom the laws of either state (English or German) give copyright, shall be entitled to exercise that right in the other of such states, for the same term to which an author of a similar work would be entitled if it were first published in such other state. The authors of each state shall enjoy in the other the same protection against piracy and unauthorized republication, and shall have the same remedies before courts of justice, as the law affords to the domestic authors. Translators are protected against a piracy of their translation, but acquire no exclusive right to translate a work except in the following case: The author who notifies on the title page of his book his intention of reserving the right of translation, will, during five years from the first publication of the book, be entitled to protection, in the treaty state, from the publication of any translation not authorized by him. In order, however, to secure this protection, the author must, within three months of the first publication of his book, register the title and deposit a copy in the proper office in the treaty state; part of the authorized translation must appear within a year, and the whole of it within three years of the deposit and registration of the original; and the translation must itself be duly registered and deposited. When a work is issued in parts, each part shall be treated as a separate book; but notice of the reservation of the right of translation need be printed only on the first page. The importation into either of the two states of unauthorized copies of works protected by the convention, is forbidden. A certified copy of the entry in the register of either state shall prima facie confer an exclusive right of republication within such state.
—The provisions of the existing conventions between England and France, Spain, Belgium and Italy, are essentially identical with those of the German treaty. The continental book, on the title page of which has been duly printed the announcement of the reservation of the right of translation, must be duly registered at stationers' hall, London. The English work must be registered for France at the bureau de la librairie of the ministry of the interior, in Paris, and for Spain and Belgium at the corresponding, offices in Madrid and Brussels.
—The provisions of the treaty between Spain and France, which is based upon the Spanish copyright act of 1878, have, in the main, been followed in the conventions between Spain and Italy, Spain and Portugal, France and Italy, etc. They are as follows: 1. Complete reciprocity between the contracting parties; 2. Treatment of each nation by the other as the most favored nation; 3. Any author of his representative who has legally secured copyright in the one country, to enjoy it forthwith in the other, without further formalities; 4. The prohibition in each country of the printing, selling, importation or exportation of works in the language of the other country, without the consent of the owners of the copyright therein.
—The copyright treaty between France and Germany, as framed in 1883, is a step in advance in many ways. By article ten, authors of the two countries are spared all formalities of registration, and the appearance of the writer's name on the title page is to be considered sufficient proof of his rights, unless the contrary is proved. In the case of anonymous or pseudonymous works the publisher will be regarded as the author's representative. The knotty point of the right of translation has been solved by a compromise. The necessity to print a reserve of the right of translation on the book is abolished, as is the registration of translations. The author is to retain his right of translation for ten years, instead of the five hitherto allowed. When a work is issued in parts, the ten years to be counted from the issue of the last part. Books and acting plays are put on the same footing; and the treaty will apply to works already published.
—An international literacy association was organized some years ago, with Victor Hugo as its first president, and has been of service in calling attention to defects in existing enactments and conventions for the protection of property in literature. It has recently called special attention to the exceptional position occupied by the United States toward the literature of other countries.
—Between no two countries has the exchange of literary productions been so considerable or so important as between Great Britain and the United States. The interests of authors, of readers, of publishers, of national literature and of national morality, have alike demanded that the exchange should be placed under international regulation, and that this extensive use by the public of each country of the literature of the other should be conditioned upon and adequate acknowledgment of the rights of the producers of such literature.
—It is a disgrace that the two great English-speaking people, claiming to stand among the most enlightened of the community of nations, should be practically the only members of such community which have failed to arrive at an agreement in this all-important international issue; and it is mortifying for an American to be obliged to admit that the responsibility for such failure must, in the main, rest with the United States.
—The reproduction of British literature in this country has, during the past century, been much more considerable than that of American literature in Great Britain, and the direct loss to the English authors, through the want of an assured and legalized remuneration from the American editions of their works, has therefore been greater than the corresponding direct loss to American authors. For this and for other reasons, the suggestions and propositions for an international arrangement have been more frequent and more pressing on the part of England. And although it is certainly true, that from an early date the rightfulness and desirability of an international copyright have been maintained in this country, not only by authors, but by leading publishers and many others who have given thought and labor to the matter, it is nevertheless the case that the views of these advocates of a measure have not as yet been successful in securing the legislation required to change the national policy. This policy still persistently refuses to recognize the rights of any alien writers, and, through such refusal, continues to inflict a grievous and indefensible wrong, not only upon such alien writers, but also upon the authors and the literature of our own country.
—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 nearly 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 understanding.
—In 1838, after the passing of the first international copyright act in Great Britain, Lord Palmerston invited the American government to co-operate in establishing a copyright convention between the two countries. In the year previous, Henry Clay, as chairman of the joint library committee, 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 is similar to that of the inventor in his patent. This is a logical position for a protectionist, interested in the rights of labor, to have taken, and the advocates of the so-called protective system, who call themselves the followers of Henry Clay, but who are to-day opposed to any full recognition of authors' rights, would do well to bear in mind this opinion of their ablest leader.
—No action was taken in regard to Mr. Clay's report or Lord Palmerston's proposal. In 1840 Mr. G. P. Putnam issued in pamphlet form "An Argument in behalf of International Copyright," the first publication on this subject in the United States of which we find record. It was prepared by himself and Dr. Francis Lieber. In 1843 Mr. Putnam obtained the signatures of ninety-seven publishers, printers and binders to a petition he had prepared, which was duly presented to congress. It took the broad ground that the absence of an international copyright was "alike injurious to the business of publishing and to the best interests of the people at large." A memorial, originating in Philadelphia, was presented the same year, in opposition to this petition, setting forth, among other considerations, that an international copyright would prevent the adaptation of English books to American wants.
—In the report made by Mr. Baldwin to congress twenty-five years later, he remarks that "the mutilation and reconstruction of American books to suit English wants are common to a shameless extent."
—In 1853 the question of a copyright convention with Great Britain was again under discussion, the measure being favored by Mr. Everett, at that time secretary of state. A treaty was negotiated by him, in conjunction with Mr. John F. Crampton, minister in London, which provided simply that all authors, artists, composers, etc., who were entitled to copyright in one country, should be entitled to it in the other on the same terms and for the same length of time. The treaty was reported favorably from the convention on foreign relations, but was laid upon the table in the committee of the whole. While this measure was under discussion, five of the leading publishing houses in New York addressed a letter to Mr. Everett, in which, while favoring a convention, they advised: 1st, that the foreign author must be required to register the title of his work in the United States before its publication abroad; 2d, that the work, to secure protection, must be issued in the United States within thirty days of its publication abroad; and 3d, that the reprint must be wholly manufactured in the United States.
—In 1853 Henry C. Carey published his "Letters on international copyright," in which he took the ground that the facts and ideas in a literary production are the common property of society, and that property in copyright is indefensible.
—In 1858 a bill was introduced into the house of representatives by Mr. Morris, of Pennsylvania, providing for international copyright on the basis of an entire remanufacture of the foreign work, and its reissue by an American publisher within thirty days of its publication abroad. This bill does not appear to have received any consideration.
—In March, 1868, a circular letter, headed "Justice to Authors and Artists," was issued by a committee composed of George P. Putnam, S. Irenæus Prime, Henry Ivison, James Parton and Egbert Hazard, calling together a meeting for the consideration of the subject of international copyright. The meeting was held on the 9th of April, Mr. Bryant presiding, and a society was organized under the title of the "Copyright Association for the Protection and Advancement of Literature and Art," of which Mr. Bryant was made president, and E. C. Stedman secretary. The primary object of the association was stated to be "to promote the enactment of a just and suitable international copyright law for the benefit of authors and artists in all parts of the world." A memorial had been prepared by the above-mentioned committee to be presented to congress, which requested congress to give its early attention to the passage of a bill, "to secure in all parts of the world the right of authors," but which made no recommendations as to the details of any measure. Of the 153 signatures attached to this memorial, 101 were those of authors and 19 of publishers.
—In the fall of 1868 Mr. J. D. Baldwin, member of the house from Massachusetts, reported a bill, the provisions of which had in the main received the approval 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 bill was recommitted to the joint committee on the library, and no action was taken upon it. Mr. Baldwin was of opinion 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 public, and even up to this date (June, 1883), the question has never reached such a state as to enable an expression of public opinion to be fairly arrived at. 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 1870 a copyright convention was proposed by Lord Clarendon, which called forth some discussion, but concerning which no action was taken on the part of the American government until 1872.
—In 1872 the new library committee called upon the authors, publishers and others interested to assist in framing a bill. At a meeting of the publishers held in New York, a majority of the firms present were in favor of the provision of Mr. Cox's bill. The report was, however, dissented from by a large minority, on the ground that the bill was drawn 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. During the same week a bill was drafted by C. A. Bristed, representing more particularly the views of the authors in the copyright association, which provided simply that all rights secured to citizens of the United States by existing copyright laws be hereby secured to the citizens and subjects of every country the government of which secures reciprocal rights to the citizens of the United States. A few weeks later, at a meeting of publishers and others held in Philadelphia, resolutions were adopted (which will be referred to later) opposing any measure of international copyright.
—These four reports wwer submitted to the library committee, together with one or two individual suggestions, of which the most noteworthy were those of Harper & Bros., and of Mr. J. P. Morton, a bookseller of Louisville. Messrs. Harper, in a letter presented by their counsel, took the broad ground that "any measure of international copyright was objectionable because it would add to the price of books, and thus interfere with the education of the people." It is to be remarked, in regard to this consideration, that it is equally forcible against any copyright whatever. As Thomas Hood says: "Cheap bread is as desirable and necessary as cheap books, but one does not on that ground appropriate the farmer's wheat stack." 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. This suggestion was afterward incorporated in what was known as the Sherman bill. In view of the wide diversity of the plans and suggestions presented to this committee, there was certainly some ground for the statement made in his report by the chairman, senator Lot. M. Morrill, that "there was no unanimity of opinion among those interested in the measure." He maintained further, in acceptance of the positions taken by the Philadelphians, "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."
—The commission appointed by the British government in 1876 to make inquiry in regard to the laws and regulations relating to home, colonial and international copyright, made reference in the following terms to the present relations of British authors with this country: "It has been suggested to us that this country would be justified in taking steps of a retaliating character with a view of enforcing, incidentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion, that, on the highest public grounds of policy and expediency, it is advisable that our laws should be based on correct principles, without respect to 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 rights of authors, irrespective of nationality." Here is a claim for a far-seeing, statesman-like policy, and based upon principles of wide equity, and planned for the permanent advantage of literature in England and throughout the world.
—It is mortifying for Americans, possessed of any sensitiveness not only for their national honor but for their national reputation for common sense, to see quoted abroad as "the American view of the copyright question" such utterances as the resolutions adopted in the meeting previously referred to, held in Philadelphia in January 1872. The meeting was presided over by Henry Carey Baird, and may be considered as having represented the opinions of the Pennsylvania protectionists, opinions which, while not, as I believe, shared by the majority of our community, do still succeed in shaping the economic policy of the nation. The resolutions are as follows: 1. That thought, unless expressed, is the property of the thinker; when given to the world, it is, as light, free to all. 2. As property it can only demand the protection of the municipal law of the country to which the thinker is subject. 3. 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. 4. The trading of privileges to foreign authors for privileges to be granted to Americans is not just, because the interests of others than themselves may be sacrificed thereby. 5. Because the good of the whole people and the safety of republican institutions demand that books shall not be made costly for the multitude by giving the power to foreign authors to fix their price here as well as abroad.
—The first proposition is certainly a pretty safe one, as thought, until expressed, can hardly incur any serious risk of being, appropriated.
—The second proposition, while admitting for a literacy creation its claim to be classed as property, denies to it the rights which are held to pertain to all property in which the owner's title is absolute. The property which would, if it still existed, most nearly approximate to such a definition as above given, is that in slaves. Twenty-five years ago the title to an African chattel who was worth in Charleston say $1,000, became valueless if said chattel succeeded in slipping across to Bermuda. It is this ephemeral kind of ownership, limited by accidental political boundaries, that the Philadelphia protectionists are willing to concede to the creation of a man's mind, the productions into which have been absorbed the gray matter of his brain, and possibly the best of his life.
—In regard to the third proposition, it may be said that the protection accorded to American authors is, according to their testimony, most unremunerative and unsatisfactory; and it is difficult to understand why a European author, who had before him, under international conventions, the markets of his native country and of all the civilized world, excepting belated America, should be expected to give up these for the poor half loaf accorded to his American brother.
—The fourth proposition strikes one as rather a remarkable protest to come from Philadelphia. Here are a number of American producers (of literature) who ask for a very moderate amount of protection (if that is the proper term to apply to a mere recognition of property rights) for their productions; but the Philadelphians, filled with an unwonted zeal for the welfare of the community at large, say: "No; this won't do; prices would be higher, and consumers would suffer." The last proposition appears to show that this want of practical sympathy with the producers of literature is not due to any lack of interest in the public enlightenment. It may well, however, he doubted 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 republican 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 Lowell and Whittier, or to the families of Longfellow and Irving? The so-called owners of these copyrights actually have it in their power, in co-operation with their publishers, to "fix the prices" of their books in this market. This monopoly must indeed the 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."
—Early in 1880 a draft of an international copyright treaty was prepared, which received the support of nearly all the publishers, including Messrs. Harper, who had found reasons since 1872 to modify their views, and of some authors. The latter, together with the publishing firms which had previously been most active in behalf of a measure, gave their assent to this, not because they thought its provisions on the whole wise or desirable, but because the middle ground that it took between an author's bill, without any restrictions, and the extreme "manufacturing view" of the Philadelphians, seemed most likely to secure the general support required; and it was believed, that if a copyright could once be inaugurated, it ought not to prove difficult to amend it in the direction of greater liberty and greater simplicity.
—The proposed treaty provided that copyright should be accorded reciprocally to English and American works, the foreign editions of which should be issued not later than three months after the first publication: the entries for copyright should, however, by means of title pages, be made simultaneously in the home and the foreign offices of registry, and the several conditions applicable to the national copyright enactments should be duly complied with. It was further provided, in order to secure the protection of the American copyrights, that the foreign work must be printed and bound in this country, the privilege being accorded of importing stereotype plates and electroypes of the illustrations. It is to be noted, that this last clause indicates an advance in liberality of opinion since the suggestions of 1872 and of earlier dates, in nearly all of which it was insisted that the foreign work must be entirely remanufactured in this country. The authors and publishers who gave their signatures, under protest, to the petition in behalf of this treaty, objected principally to the brief term allowed for the preparation and issue of the reprinted editions. Many of the authors believed that there should be no limit of time, while some of the leading publishing houses insisted that the limit ought to be twelve months, and should in no case exceed six months. Attention was especially called to the fact that such a limitation as three months, while a disadvantage to all authors whose reputations were not sufficiently assured to enable them to make advance agreements for their works, would be especially detrimental to American writers, whose books were rarely undertaken by English or continental reprinters until they had secured a satisfactory home reputation. Chas. Scribner, Henry Holt & Co. and Roberts Bros. united with G. P. Putnam's Sons in a protest against what seemed to them the unwise and illiberal restrictions of the proposed measure. These firms did not, however, think best to withhold their signatures from the petition in behalf of the treaty, being of opinion, that even if it might not prove practicable to amend this before it was put into effect, amendments could as a later date be introduced, and that in any case, even a very faulty treaty would be an advance over the present unsatisfactory and iniquitous state of things.
—In July, 1880, the American members of the international copyright committee, which had been appointed by the association for the reform of the law of nations, addressed to Mr. Evarts, secretary of state, a memorial in behalf of a treaty practically identical with the measure above specified, with the exception of specifying no limit of time for the issue of the reprint.
—In September, 1880, Mr. Lowell, at that time minister in London, submitted to Earl Granville the draft of a treaty based upon the suggestions of American publishers. Lord Granville advised Mr. Lowell, in March, 1881, that the British government would be interested in completing such treaty, but that an extension of the term for republication from three months to six would be considered essential, while a term of twelve months was thought to be much more equitable.
—In March, 1881, the international literary association adopted the report of a committee appointed to examine the provisions of the proposed treaty between the United States and England. In this report the two countries were congratulated at the prospect of an agreement so important to the authors of each, and the United States was especially congratulated upon the first steps being taken to remove from the nation the opprobrium of being the only people from whom authors could not secure just treatment. The provisions of the treaty calling for remanufacture, and the brief term allowed for the preparation of the reprint, were, however, sharply criticised. In the spring of 1881, Sir Edward Thornton, the British minister in Washington, received instructions from London to proceed to the consideration of the treaty, provided the term for reprint could be extended. President Garfield had taken a strong interest in the matter, an interest which Mr. Blaine was understood to share, and it was expected that the treaty would be submitted to the senate in the fall of 1881. The death of Garfield and the change in the state department appear to have checked the progress of the business, and there has since, to the date of this writing (June, 1888), been no evidence of any interest in it on the part of the present administration.
—It appears as if further consideration for the treaty can be secured only on the strength of a popular demand, based on a correct understanding of the rights and just requirements of authors, American and foreign, and on an intelligent appreciation of the unworthy position toward the question at present occupied by the United States, which alone among civilized nations has failed to give full recognition to literature as property.
—This brief historical sketch of the various national and international enactments relating to copyrights, indicates also the lines along which were developed the ideas relating to authors rights. The conception of property in literary ideas is of necessity closely bound up with the conception of property in material things. In tracing through successive centuries the history of this last, we find a continued development in its range and scope corresponding to the development in civilization itself, of which so large a factor is the recognition of human rights and reciprocal human duties.
—It would be beyond the scope of this paper to go into the history of the property idea. It is sufficient to point out, that what a man owned appears in the first place to have been that which he had "occupied", and could defend with his own strong arm. Later, it became what his tribe could defend for him. With the organization of tribes into nations, that which a man had occupied, shaped, or created, was recognized as his throughout the territory of his nation.
—The idea of protection by national law was widened into an imperial conception by the Roman control of the Roman world. With the shattering of the empire, the former local views of property rights (or, at least, of property possibilities) again obtained, and were only gradually widened and extended by the growth, through commerce, of international relations, a growth much retarded by feudal claims and feudal strifes. The robberbarons of the Rhine, by their crushing extortions from traders, did what was in their power to stifle commerce, and unwittingly laid the foundations of the so-called protective system; and later, the little trading communities, still hampered by the baronial standard, built up at their gates barriers against the admission of various products from the outer world, the free purchase of which by their own citizens would, as they imagined, in some manner work to their impoverishment. Barons and traders were alike fighting against the international idea of property, under which that which a man has created, or legitimately occupied, is his own, and he is free to exchange it, that is, entitled to be protected in the free exchange of it, throughout the civilized world, for any other commodities or products. A man's ownership of a thing can not be called complete if it is to be hampered with restrictions as to the place where, or the objects for which, he can exchange it.
—To that extent the idea of international copyright is bound up with the idea of free trade. They both claim a higher and wider recognition for the rights of property, taking the position, that what a man has created by his own labor is his own, to do what he will with, subject only to his proportionate contribution to the cost of carrying on the organization of the community under the protection of which his labor has been accomplished, and to the single limitation that the results of his labor shall not be used to the detriment of his fellow-men. The opponents of free trade would limit the right of the producer to exchange his products, saying, as to certain commodities, that he shall not be permitted to receive them at all, and, as to others, that he must give of his own product, in addition to the open market equivalent of the article desired, an additional quantity as a bonus to some of his favored fellow-citizens. The opponents of international copyright assert that the producers of literary works shall be at liberty to sell them only within certain political boundaries. The necessary deduction from such a position is, that the extent of an author's remuneration is made to depend, not upon the number of readers whom he had benefited, but upon the extent of the political boundaries of the country in which he happened to be a resident.
—If the recognition of the fact that aliens and citizens of foreign states (the "barbarians" of the Greeks and Romans) possessed rights deserving of respect, had depended solely upon the development of international ethics and humanitarian principles, its growth would have been still slower than has been the case. That growth has, however, been powerfully furthered by utilitarian teachings. When men came to understand that their own welfare was not hampered, but furthered, by the prosperity of their neighbors, reciprocity took the place of reprisals, and commercial exchanges succeeded Chinese walls.
—The same result, in Europe at least, followed the understanding of the fact, that the development of national literature, and the adequate compensation of national authors is largely dependent upon the proper recognition of the property rights of foreign authors: this understanding, added to the widening conceptions of human rights, irrespective of boundaries, and the increasing assent to the claim that the producer is entitled to compensation proportioned to the extent of the service rendered by his production, and to the number of his fellow-men benefited by this, have secured international copyright arrangements on the part of all countries where literature exists, excepting only the great republic, which is founded on the "rights of men".
—The question of the proper duration of literary property has called forth a long series of discussions and arguments, the more important of which are referred to in Mr. Macleod's paper in this work. Authors have almost from the beginning taken the position that literary property is the highest kind of property in existence; that no right or title to a thing can be so perfect as that which is created by a man's own labor and invention; that the exclusive right of a man to his literary productions and to the use of them for his own profit is as entire and perfect as the faculties employed and labor bestowed are entirely and perfectly his own. "If this claim be accepted," says Noah Webster, "it is difficult to understand on what logical principle a legislature or court can determine that an author enjoys only a temporary property in his own productions. If a man's right to his own property in writing is as perfect as to the productions of his farm or his shop, how can the former be abridged or limited, while the latter is held without limitations? Why do the productions of manual labor reach higher in the scale of rights of property than the productions of the intellect?"
—It is the case, however, that notwithstanding the logic of this position, no nation to-day accords copyright for more than a limited term, of which the longest is eighty years. In the only countries in which the experiment of perpetual copyright has been attempted, Holland, Belgium, Sweden and Denmark, a return was speedily made to protection for a term of years. There appears to have been always apprehension on the part of the public and the governments lest an indefinite copyright might result in the accumulation in the hands of traders of "literary monopolies," under which extortionate prices would be demanded from successive generations for the highest and most necessary productions of national literature. It is hardly practicable to estimate how well founded such apprehensions may be, as no opportunities have as yet existed for the development of such monopolies. It seems probable that accumulations of literary property would, as in the case of other property, be so far regulated by the laws of supply and demand as not to become detrimental to the interests of the community. If a popular demand existed or could be created for an article, it would doubtless be produced and supplied at the lowest price that would secure the widest popular sale. If the article was suited but for a limited demand, the price, to remunerate the producer and owner, would be proportionately higher. A further consideration obtains in connection with literary property which has also influenced the framing of copyright enactments. The possibility exists that the descendants of an author who have become by inheritance the owners of his copyrights, might, for one cause or another, desire to withdraw the works from circulation. A case could even occur in which parties desiring to suppress works might possess themselves of the copyrights for this purpose. The heirs of Calvin, if converted to Romanism, would very naturally have desired to suppress the circulation of the "Institutes"; and the history of literature affords, of course, hundreds of instances in which there would have been sufficient motive for the suppressing, by any means which the nature of copyrights might render possible, works that had been once given to the world. It will, doubtless, be admitted, that, in this class of cases, the development of literature and freedom of thought would alike demand the exercise of the authority of the government on behalf of the community, to insure the continued existence of works in which the community possessed any continued interest.
—The efforts in this country in behalf of international copyright have been always more or less hampered by the question being confused with that of a protective tariff. The strongest opposition to a copyright measure has uniformly come from protectionists.
—Richard Grant White said, in 1868: "The refusal of copyright in the United States to British authors is, in fact, though not always so avowed, a part of the American protective system. With free trade, we shall have a just international copyright".
—It would be difficult, however, for protectionists to show logical grounds for their position. American authors are manufacturers who are simply asking, first, that they shall not be undersold in their home market by goods imported from abroad on which no (ownership) duty has been paid, which have been simply "appropriated"; secondly, that the government for such of their own goods as are enjoyed by foreigners. These are claims with which a protectionist who is interested in developing American industry ought certainly to be in sympathy. The contingency that troubles him, however, is the possibility, that, if the English author is given the right to sell his books in this country, the copies sold may be, to a greater or less extent, manufactured in England, and the business of making these copies may be lost to American printers, binders and paper men. He is much more concerned for the protection of the makers of the material casing of the book than for that of the author who created its essential substance.
—It is evidently to the advantage of the consumer, upon whose interest the previously-referred-to Philadelphia resolutions lay so much stress, that the labor of preparing the editions of his books be economized as much as possible. The principal portion of the cost of a first edition of a book is the setting of the type, together with, if the work is illustrated, the designing and engraving of the illustrations. If this first cost of stereotyping and engraving can be divided among several editions, say one for Great Britain, one for the United States, and one for Canada and the other colonies, it is evident that the proportion to be charged to each copy printed is less, and that the selling price per copy can be smaller, than would be the case if this first cost had got to be repeated in full for each market. It is, then, to the advantage of the consumer, that, whatever copyright arrangement be made, nothing shall stand in the way of foreign stereotypes and illustrations being duplicated for use here whenever the foreign edition is in such shape as to render this duplicating an advantage and a saving in cost.
—The few protectionists who have expressed themselves in favor of an international copyright measure, and some others who have fears as to our publishing interest being able to hold its own against any open competition, insist upon the condition that foreign works to obtain copyright must be wholly remanufactured and republished in this country. We have shown how such a condition would, in the majority of cases, be contrary to the interests of the American consumer, while the British author is naturally opposed to it because, in increasing materially the outlay to be incurred by the American publisher in the production of his edition, it proportionately diminishes the profits, or prospects of profits, from which is calculated the remuneration that can be paid to the author.
—The suggestion, previously referred to, 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 of his work, and to limit the prices at which this work shall be furnished to the consumer. There is no more equity in the government's undertaking this limitation of the producer and protection of the consumer in the case of books, than there would be in that of bread or beef. Further, such an arrangement would be of benefit to neither the author, the public, nor the publishers, and would, we believe, make of international copyright, and of any copyright, a confusing and futile absurdity.
—A British author could hardly obtain much satisfaction from an arrangement, which, while preventing him from placing his American business in the hands of a publishing house selected by himself, and of whose responsibility he could assure himself, would throw open the use of his property to any dealers who might scramble for it. He could exercise no control over the style, the shape, or the accuracy of his American editions; could have no trustworthy information as to the number of copies the various editions contained; and if he were tenacious as to the collection of the royalties to which he was entitled, he would be able in many cases to enforce his claims only through innumerable law suits, and would find the expenses of the collection exceed the receipts.
—The benefit to the public would be no more apparent. Any gain in the cheapness of the editions produced would be more than offset by their unsatisfactoriness; they would, in the majority of cases, be untrustworthy as to accuracy or completeness, and be hastily and flimsily manufactured. A great many enterprises, also, desirable in themselves, and that would be of service to the public, no publisher could, under such an arrangement, afford to undertake at all, as, if they proved successful, unscrupulous neighbors would, through rival editions, reap the benefit of his judgment and his advertising. In fact, the business of reprinting would fall largely into the hands of irresponsible parties, from whom no copyright could be collected. The arguments against a measure of this kind are, in short, the arguments in favor of international copyright. A very conclusive statement of the case against the equity or desirability from any point of view of such an arrangement in regard to home copyright, was made before the British commission, in 1877, by Herbert Spencer.
—The recommendation had been made, for the sake of securing cheap books for the people, that 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: lst. That this would be a direct interference with the laws of trade, under which the author had the right to make his own bargains. 2d. No legislature was competent to determine what was a "fair rate of profit" for an author. 3d. 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. 4th. 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 the government. 5th. If books are to be cheapened by such a measure, it must be at the expense of some portions of the profits now going to the authors and publishers; the assumption is, that book producers and distributers 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. 6th. 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. 7th. 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. 8th. Open competition of this kind would, in the end, result in crushing out the smaller publishers, and in concentrating the business in the hands of a few houses whose purses had been long enough to carry them through the long and unprofitable contests that would certainly be the first effect of such legislation.
—All the considerations adduced by Mr. Spencer have, of course, equal force with reference to open international publishing, while they may also be included among the arguments in behalf of international copyright.
—It is due to American publishers to explain that, in the absence of an international copyright, there has grown up among them a custom of making payments to foreign authors, which has become, especially during the last twenty-five years, a matter of very considerable importance. Some of the English authors who testified before the British commission stated that the payments from the United States for their books exceeded their receipts in Great Britain. These payments secure, of course, to the American publisher no title of any kind to the books. In some cases they obtain for him the use of advance sheets, by means of which he is able to get his edition printed a week or two in advance of any unauthorized edition that might be prepared. In many cases, however, payments have been made some time after the publication of the works, and when there was no longer even the slight advantage of "advance sheets" to be gained from them.
—While the authorization of the English author can convey no title or means of defense against the interference of rival editions, the leading publishing houses have, with very inconsiderable exceptions, respected each other's 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 not been, as a rule, interfered with. This understanding among the publishers goes by the name of "the courtesy of the trade." I think it is safe to say that it is to-day the exception for an English work of any value to be published by any reputable house without a fair, and often a very liberal, recognition being made of the rights(in equity) of the author. In view of the considerable amount of harsh language that has been expended in England upon our American publishing houses, and the opinion prevailing in England that the wrong in reprinting is entirely one-sided, it is in order here to make the claim which can, I believe, be fully substantiated, that, in respect to the recognition of the rights of authors unprotected by law, their record has in fact, during the past twenty-five years, been better than that of their English brethren. Englilsh publishers have become fully aroused 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 10 per cent of the works issued in England in that year were American reprints. The acknowledgments, however, of any rights on the part of American authors have been few and far between, and the payments but inconsiderable in amount. The leading English houses would doubtless very much prefer to follow the American practice of paying for their reprinted material, but they have not succeeded in establishing any general understanding similar to our American "courtesy of the trade" and books that have been paid for by one house are, in a large number of cases, promptly reissued in cheaper rival editions by other houses. It is very evident, that, in the face of open and unscrupulous competition, continued or considerable payments to authors are difficult to provide for; and the more credit is due to those firms who have, in the face of this difficulty, kept a good record with their American authors.
—One of the not least important results to be looked for from international copyright is a more effective co-operation in their work on the part of the publishers of the two great English-speaking nations. They will find their interest and profit in working together; and the very great extension that may be expected in the custom of a joint investment in the production of books for both-markets, will bring a very material saving in the first cost, a saving in the advantage of which authors, publishers and public will alike share.
—It seems probable that the "courtesy of the trade" which has made possible the present relations between American publishers and foreign authors, is not going to retain its effectiveness. Within the last few years certain "libraries"and "series"have sprung into existence, which present in cheaply-printed pamphlet form some of the best recent English fiction. The publishers of these series reap the advantages of the literary judgment and foreign connections of the older publishing houses, and, taking possession of material that has been carefully selected and liberally paid for, are able to offer it to the public at prices which are certainly low as compared with those of bound books that have paid copyright, but are doubtless high enough for literature that is so cheaply obtained and so cheaply printed. These enterprises have been carried on by concerns which have not heretofore dealt in standard fictions, and which are not prepared to respect the international arrangements or trade courtesies of the older houses.
—To one of the "cheap series" the above remarks do not apply. The "Franklin Square Library" is published by a house which makes a practice of paying for its English literary material, and which lays great stress upon "the courtesy of the trade." It is generally understood that this series was planned, not so much as a publishing investment, as for purposes of self-defense, and that it would in all probability not be continued after the necessity for self-defense had passed by. A good many of its numbers include works for which the usual English payments have been made, and it seems probable, that, in this shape, books so paid for can not secure a remunerative sale. It seems safe to conclude, therefore, that their publication is not, in the literal sense of the term, a business investment, and that the undertaking was not planned to be permanent.
—A very considerable business in cheap reprints has also sprung up in Canada, from which point are circulated throughout the western states cheap editions of English works, for the "advance sheets" and "American market" of which United States publishers have paid liberal prices. Some enterprising Canadian dealers have also taken advantage of the present confusion between the United States postal and customs regulations to build up a trade by supplying through the mails reprints of American copyright works, in editions which, being flimsily printed and free of charge for copyright, can be sold at very moderate prices indeed.
—It is very evident, that, in the face of competition of this kind, the payments by American publishers to foreign writers of fiction must be materially diminished. 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 certain publishers who have in years past opposed an international copyrights 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.
—We may, I trust, be able, at no very distant period, to look back upon, as exploded fallacies of an antiquated barbarism, the two beliefs, that the material prosperity of a community can be assured by surrounding it with Chinese walls of restriction to prevent it from purchasing in exchange for its own products its neighbor's goods, and that its moral and mental development can be furthered by the free exercise of the privilege of appropriating its neighbor's books.
GEO. HAVEN PUTNAM.