QUESTIONS OF THE DAY. 3 — Uur Merchant Marine. How it rose, increased, became great, declined, and decayed ; with an inquiry into the conditions essential to its resuscitation and prosperity. By David A. Wells. Octavo, cloth I oo 5 & 6 — The American Citizen's Manual. Edited by Worthington C. Ford. Part I. — Governments (National, State, and Local), the Electorate, and the Civil Seryice. Part 11. — The Functions of Government, considered with special reference to taxation and ex- penditure, the regulation of commerce and industry, provision for the poor and insane, the management of the public lands, etc. Two vols, in one. Cloth . I 25 7 — Spoiling the Egyptians. A Tale of Shame. Told from the British Blue-Books. By J. Seymour Keay. Octavo, cloth, 75 9 — The Destructive Injluence of the Tariff upon Manufacture and Commerce, and the Figures and Facts Relating Thereto. By J. ScHOENHOF. Octavo, cloth, 75 cents ; paper . . 40 10 — Of Work and Wealth. A Summary of Economics. By R. R. Bowker. Octavo, cloth 75 13 — Public Relief and Private Charity. By Josephine Shaw Lowell. Octavo, cloth, 75 cents ; paper 40 14 — " The Jukes." A Study in Crime, Pauperism, Disease, and Heredity.' By R. L. Dugdale. Octavo, cloth i 00 ,16 — The True Issue. By E. J. Donnell. Octavo, paper . . 25 17 — Heavy Ordnance for National Defence. By Wm. H.-Jaques, Lieut. U. S. Navy. Octavo, paper . . . . _ . 25 19— The History of the Present Tariff. ByF. W. Taussig. Octavo, cloth 75 G. P. PUTNAM'S SONS, Publishers, New York and London. The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022607455 The Question of copyright :a summary of 3 1924 022 607 455 Authors and Publishers— a Manual of Suggestions for Beginners in Literature. Comprising a description of publishing methods and arrangements, directions for the preparation of MSS. for the press, explanations of the details of book manufacturing, with instructions for proof- reading, and specimens of typography, the text of the United States Copyright Law, and information concerning International Copyrights, together with' general hints for authors. Fourth edition. Octavo . . . $i oo " Full of valuable information for authors and writers. ... A most instructive. . . and excellent manual." — Harper's Monthly (Easy Chair). " Authors and readers and all who use books must recognize in the manual a firm, friendly hand extended where one was sorely needed. — Independent. ** The work itself, though a small one, is of great value. It modestly purports to be merely a manual of suggestions for beginners in literature, but there is much in it which the most experienced literary veteran can read with profit, not merely for the views which it suggests but for the information which it contains." — N. Y. Evening Post, THE QUESTION OF QOPYRIGHT A SUMMARY OF THE COPYRIGHT LAWS AT PRESENT IN FORCE IN THE CHIEF COUNTRIES OF THE WORLD TOGETHER WITH A REPORT OF THE LEGISLATION NOW PENDING IN GREAT BRITAIN, A SKETCH OF THE CONTEST IN THE UNITED STATES, 1837-1891, IN BEHALF OF INTERNATIONAL COPYRIGHT, AND CERTAIN PAPERS ON THE DEVELOPMENT OF THE CONCEPTION OF LITERARY PROPERTY, AND ON THE PROBABLE - EFFECTS OF THE NEW AMERICAN LAW. COMPILED BY GEO. HAVEN PUTNAM SECRETARY OF THE AMERICAN PUBLISHERS* COPYRIGHT LKAGUE G. P. PUTNAM'S SONS NEW YORK LONDON 27 WEST TWENTY-THIRD ST. 27 KING WILLIAM ST., STRAND S^t Jrochtrbotlitr ^k»s 1891 ,4 3^yr^ \ IBRARVx/ Copyright, 1891, BY G. P. PUTNAM^S SONS. Ube IRnfcfterbocfiec ipress^ mew j^orft Electrotyped, Printed, and Bound by Gy P. Putnam's Sous PREFACE. In connection with the recent enactment by Con- gress of a Copyright . Law securing American Copy- right for aliens, the subject of the status of Hterary property and of the rights of the producers of liter- ature in the United States and throughout the world is attracting at this time special attention. I have judged, therefore, that a volume presenting, in convenient form for reference, a summary of the more important of the Copyright Laws and Interna- tional Conventions now in force, and indicating the bearing of these laws on the interests of writers and their readers, might prove of some service to the public. With the summary of existing legislation, I have included a brief abstract of certain measures now under consideration in England, some one of which is likely, before long, to replace the present British law. The compilation lays no claim to completeness, but is planned simply as a selection of the more im- portant and pertinent of the recent enactments and of some of the comments upon them. I am indebted to the courtesy of Mr. Brander Matthews for the permission to include in the vol- ume his valuable papers on "The Evolution of Copyright," and "Copyright and Prices "—papers which were prepared for use in the copyright cam- iv PREFACE. paign and which proved of very practical service. Mr. Bowker, who is an old-time worker in the copy- right cause, has also kindly permitted the use of three pertinent articles from his pen, which were first printed in the valuable work on The Law and Literature of Copyright, prepared by himself and Mr. Solberg, a volume which contains the most com- prehensive bibliography of the subject with which I am acquainted. I have thought it worth while, also, to reprint sev- eral papers of my own, which appeared to have some bearing on the history or on the status of copyright, and which also were, for the most part, written for " campaign " purposes. The report submitted by Mr. Simonds on behalf of the House Committee on Patents presents a very comprehensive and succinct summary of the grounds on which the demand for an International Copy- right Bill was based, and it is probably tbe most complete and forcible of the many reports presented to Congress on the subject. This report appeared, therefore, to belong very properly in the collection. In bringing together statements and records from a number of sources, it was impracticable to avoid a few repetitions ; but in a volume which lays no claim to literary form, but has been planned simply as a compilation of facts and information, a certain amount of repetition will, I trust, not be considered a very grave defect. An examination of the copyright legislation of Europe makes clear that the United States, not- ^vithstanding the important step in advance it has, PREFACE. V after such long delays, just taken, is still, in its recognition of the claims of literary workers, very much behind the other nations of the civilized world. The conditional measure for securing American copyright for aliens (and, under reciprocity, foreign copyright for Americans), a measure which is the result of fifty-three years of efifort on the part of individual workers and of successive Copyright Committees and Leagues, brings this country to the point reached by France in 1810, and by Great Britain and the states of Germany in 1 836-1 837. Under the International Copyright arrangements which went into effect in Europe in the earlier years of the century, copyright was conceded to works by foreign authors only when such works had been manufactured within the territory of the country granting the copyright. As late as 183 1, for instance, Lord St. Leonards stated, in the case of Jeffreys vs. Boosey, that it had never been the intention of the English law to extend a copyright protection over works not manufactured within British territory. The new American act, which makes American manufacture a first condition of American copy- right for aliens, brings us, therefore, to what has usually, in other countries, been the first stage in the development of International Copyright — a stage which was reached in Europe more than half a cent- ury ago. What is probably the final stage was attained in Europe in 1887, when the provisions of the Berne Convention went into effect. Under this conven- vi PREFACE. tion, by fulfilling the requirements of their domestic copyright laws, authors can now at once secure, without further conditions or formalities, copyright for their productions in all the states belonging to the International Union. The states which, in accepting this convention (the report of which will be found printed in this volume), organized themselves into the International Copyright Union, comprised, in addition to nearly all the coGntries of Europe, Tunis and Liberia as representatives of Africa, together with a single representative of the literary civilization of the western hemisphere, the little republic of Hayti. It is not probable that another half century of effort will be required to bring public opinion in the American republic up to the standard of interna- tional justice already attained by Tunis, Liberia, and Hayti. Under this standard, it is recognized that literary producers are entitled to the full control of their productions, irrespective of political boundaries and without the limitations of irrelevant conditions. The annual production of American literature should certainly be not a little furthered, both as to its quantity and its importance, by the stimulus of the new Copyright Act. During the past few years American writers have been securing growing circles of readers in England and on the Continent, and a material increase can now be looked for in the European demand for American books — a demand which, in the absence of restrictions, will be met by the export of plates as well as of editions. The PREFACE. vii improvement and the cheapening of American methods of typesetting and electrotyping, and, in fact, of all the processes of book n^anufacture, will, I anticipate, at no distant date, remove from the minds of the men engaged in this manufacture the fear that they are not in a position to compete to advantage with- the book-making trades of Europe, and that an International Copyright, without manu- facturing conditions, might bring about a transfer to England and to Germany of a large part of the business of American book-making. It was this apprehension on the part of the American printers, and the trades associated with them, that caused the restrictions in the present act to be inserted. It is my belief, however, that the trades in question will before long recognize that there is no adequate ground . for such an apprehension, and that, admit- ting the importance of preventing any obstacles from being placed in the way of the exporting of American books and American plates, they will themselves take action to secure the elimination of these restrictions. When this has been brought about, there should be nothing further to prevent the United States from entering the International Copyright Union, and thus completing, so far as the literature-produc- ing and literature-consuming nations of the world are concerned, the abolition of political boundaries for literary property. While the recognition by our country of the claims of foreign authors has been so tardy, its leg- islation for domestic copyright has also been based VIU PREFACE. upon- a narrower conception of the property rights of authors than that accepted by the legislators of Europe. The law of 1870 (given in full in this vol- ume), which is in this respect unchanged by the Act of 1 89 1, gives. to a literary production a first term of copyright of twenty-eight years, and an extension of such term for fourteen years further only if at the expiration of the first term the author or the author's widow or children be living. If the author, dying before the expiration of the first term, leave neither widow nor children, the copyright of his work is lim- ited to twenty-eight years. It was for this reason that Washington Irving was unable to insure for his nieces (his adopted children) the provision which they needed, and which a continued copyright in their uncle's works would have secured for them. In England, the present law gives a copyright term of forty-two years, or for the life of the author and for seven years thereafter, whichever term may be the longer ; and the amended law now proposed extends the term for thirty years after the death of the author. This latter is the term provided in the law of the German Empire, while in Russia and in France the copyright endures for the life of the ^author and for fifty years thereafter. The steady tendency of legislation has been towards an increase of the term of copyright and a recognition of the right of a literary producer to work for his grandchildren as well as for his children ; and the desirability of bringing the American term into accord with that in force in Germany and pro- PREFACE. IX posed in England, namely, the life of the author and thirty years thereafter, is now a fair subject for con- sideration. Since the framing of the American Act of 1870, not a few questions have arisen in connection with new processes of reproduction of works of art, etc., which are not adequately provided for in that act ; and the criticism is often heard from American artists that the copyright protection for their designs is inadequate. The American act of the present year, providing copyright for aliens, can hardly be accepted as final legislation, and some of its provisions will, doubtless, at no distant date, after they have had the practical test of experience, call for further consideration. It seems to me that in order to secure consistent, enduring, and satisfactory legislation, that will fairly meet all the requirements and will not bring about needless business perplexities necessitating for their solution frequent appeals to the courts, it will be wise to follow the precedent of Germany, France, and England, and to arrange for the appointment of a commission of experts to make a thorough inves- tigation of the whole subject of copyright, literary, musical, and artistic, domestic and international. The report of such a commission should form a much more satisfactory basis for trustworthy legis- lation than could be secured in any other way. A subject like copyright is evidently not one which can safely be intrusted to the average congressional committees, especially if the bills framed in such committees are to have injected into them after- X PREFACE. wards the " amendments " of eleventh-hour experts of the Senate or the House, men who, having looked into the matter over night, feel assured that they know all about it. The action of the Senate in February, 1891, on the Platt-Simonds Bill, is a fair example of the kind of amateur and haphazard legislation referred to. Under the lead of the principal republican and democratic opponents of the Copyright Bill, an amendment was offered and was actually passed by the Senate, which had the effect of abolishing domestic copyright ; and it was not until several days later, when this unlooked-for result of senatorial wisdom had been pointed out by outside critics, that the amendment was rescinded.^ If this volume may serve to direct public atten- tion to the advisability of the appointment of a copyright commission through whose labors the risks of such haphazard copyright legislation may at least be minimized, an important purpose of its pub- lication will have been accomplished. G. H. P. New York, March 28, rSgi. ' The Sherman amendment, as originally framed, authorised the importation, irrespective of the permission of the author, of foreign editions of works, whether by foreign or American authors, which had secured American copyright. The amendment was passed February 14, 1891, by a vote of 25 to 24, and was rescinded February 17, by a vote of 31 to 29. Its mover was Senator Sherman of Ohio, and he was actively supported by Senators Daniels of Virginia, Hale of Maine, Gorman of Maryland, and other experienced legislators. Contents. PAGE Editor's Preface i The Nature and Origin of Copyright, by R. R. Bowker. . i The Evolution of Copyright, by Brander Matthews . . 8 Literary Property : An Historical Sketch, BY G. H. Putnam 35- Development of Statutory Copyright in England, BY R. R. Bowker 96 Summary of the History of Copyright in the United States 102 The U. S. Copyright Law of July, 1870 107 The Hawley Copyright Bill of January, 1885 114 Report on the International Copyright Bill op the House Committee on Patents, by W. E. Simonds 115 United States Copyright Act of March, 1891 169 Analysis of the Copyright Act of March, 1891, BY G. H. Putnam 176 Digest of the Copyright Law of Great Britain, BY Sir James Stephen, Q.C 186 Report of the British Copyright Commission of 1878. . 212 The Monkswell Bill, Introduced into Parliament on Behalf of the British Society of Authors, Novem- ber 26, 1890 273 Analysis of the Monkswell Bill, by Walter Besant . . 280 Xl'i CONTENTS. PACfi Analysis of the Pearsall-Smith Scheme, BY G. H. Putnam 285 Report of the Berne Copyright Convention of Sep- tember, 1887 297 Report of the Copyright Convention of South America HELD at Montevideo, January ii, 1889 324 Henry Clay's Report to the U. S. Senate, in Favor of International Copyright, February 16, 1837 326 Cheap Books and Good Books, by Brander Matthews. . 333 International Copyright and the Prices of Books, by G. H. Putnam 356 Copyright, Monopolies, and Protection, by G. H. Putnam. 364 Summary of the Existing Copyright Laws of the more Important Countries of the World 369 The Contest for International Copyright, by G. H. Putnam 376 Extracts from the Speeches of Senators Platt, Evarts, and hiscock in the copyright debate in the sen- ATE, February and March, iSgi 399 The Vote in the House of Representatives, December 3, i8go, BY which the Copyright Bill was Passed. . . . 407 The Vote in the Senate, March 4, iSgi, by which the Copyright Bill was Passed ' 411 The Question of Copyright. I. THE NATURE AND ORIGIN OF COPY-' RIGHT. By R. R. Bowker. Copyright (from the Latin copia, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art. There is another legal sense of the word " copy- right " much emphasized by several English justices. Through the low Latin use of the word copia, our word '' copy " has a secondary and reversed mean- ing, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the "copy" set in his copy-book, and the modern printer calls for the author's " copy." Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards : " When we are talking of the right of an author we must distinguish between the mere right 2 THE QUESTION OF COPYRIGHT. to his manuscript, and to any copy which he may choose to make of it, as his property, just Hke any other personal chattel, and the right to multiply copies to the exclusion of every other person. Noth- ing can be more distinct than these two things. The common law does give a man who has com- posed a work a right to it as composition, just as he has a right to any other part of his personal property ; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own com- position after he has published it to the world, is a totally different thing." Baron Parks, in the same case, pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of mul- tiplication, which alone has been the subject of special statutory protection. There is nothing which may more properly be called property than the creation of the individual brain. For property means a man's very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of oww-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual, thinking it, had put it aside without such record, it would not, in ciny THE NATURE AND ORIGIN OF COPYRIGHT. 3 practical sense, exist. We cannot know what " might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity to so materialize their thoughts. It is sometimes said, as a bar to this idea of prop- erty, that no thought is new — that every thinker is dependent upon the gifts of nature arid the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him — a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy — aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land. Farmer Smith can ; but Shakespeare can- not write Paradise Lost nor. Milton Much Ado, though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shake- speare writing, not because of Dante and Boccaccio, who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream. Property right in unpublished works has never been effectively questioned — a fact which in itself 4 THE QUESTION OF COPYRIGHT. confirms the view that intellectual property is a natural inherent right. The author has "supreme control " over an unpublished work, and his manu- script cannot be utilized by creditors as assets with- out his consent. " If he lends a copy to another," says Baron Parkes, " his right is not gone ; if he sends it to another under an implied undertaking that he is not to part with it or publish it he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's con- sent. The theory that, by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the' fact that in so doing the author only conveys to each holder of his book the right to indi- vidual use, and not the right to multiply copies ; as though the landowner should not give, but sell, per- mission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege. It is at the moment of publication that the un- disputed possessory right passes over into the much- disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use — that is, get beneficial results THE NATURE AND ORIGIN OF COPYRIGHT. 5 from — his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain " an im- plied undertaking " that the buyer has liberty to use his copy but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclu- sion seems to be, indeed, a part of ownership. In the case of land the owner is entitled to prevent trespass to the extent of a shot-gun, and in the same way, the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress ; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and pub- lication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner. The inherent right of authors is a right at what is called common law — that is, natural or customary law. So far as concerns the undisputed rights be- fore publication, the copyright laws are auxiliary merely to common law. Rights exist before reme- dies ; remedies are merely invented to enforce rights. " The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger, " is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead 6 THE QUESTION OF COPYRIGHT. of the consequence, of property therein." After the invention of printing it became evident that new methods of procedure must be devised to en- force common law rights. Copyright became, there- fore, the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished. These laws, covering, naturally enough, only the country of the author, and specifying a time during which the penalties could be enforced, and providing means of registration by which authors could regis- ter their property rights, as the title to a house is registered when it is sold, had an unexpected result. The statute of Anne, which is the foundation of present English copyright law, intended to protect authors' rights by providing penalties against their violation, had the effect of limiting those rights. It was doubtless the intention of those who framed the statute of Anne to establish, for the benefit of authors, specific means of redress. Overlooking, apparently, the fact that law and equity, as their principles were then established, enabled authors to use the same means of redress, so far as they held good, which persons suffering wrongs as to other property had, the law was so drawn that, in 1774, the English House of Lords (against, however, the weight of one half of English judicial opinion) de- cided that, instead of giving additional sanction to a formerly existing right, the statute of Anne had substituted a new and lesser right, to the exclusion of what the majority of English judges held to have been an old and greater right. Literary and like THE NATURE AND ORIGIN OF COPYRIGHT. 7 property to this extent lost the character of copy- right, and became the subject of zo-^y -privilege, de- pending on legal enactment for the security of the private owner. American courts, wont to follow English precedent, have rather taken for granted this view of the law of literary property, and our Constitution, in authorizing Congress to secure " for limited terms to authors and inventors the exclusive right to their respective writings and discoveries," was evidently drawn from the same point of view, . though it does not in itself deny or withdraw the natural rights of the author at common law. II. THE EVOLUTION OF COPYRIGHT. By Brander Matthews. (Reprinted from the Political Science Quarterly.) " The only thing that divides us on the question of copyright seems to be a question as to how much property there is in books," said James Russell Lowell, two or three years ago ; and he continued, ' ' but that is a question we may be well content to waive till we have decided that there is any property at all in them. I think that, in order that the two sides should come together, nothing more is neces- sary than that both should understand clearly that property, whether in books or in land or in anything else, is artificial ; that it is purely a creature of law ; and, more than that, of local and municipal law. When we have come to an agreement of this sort, I think we shall not find it difficult to come to an agreement that it will be best for us to get whatever acknowledgment of property we can, in books, to start with." " An author has no natural right to a property in his production," said the late Matthew Arnold, in his acute and suggestive essay on copyright, " but then neither has he a natural right to anything whatever which he may produce or acquire. What is true is that a man has a strong instinct making him seek to possess what he has produced or ac- quired, to have it at his own disposal ; that he finds pleasure in so having it, and finds profit. The instinct is natural and salutary, although it may be over-stimulated and indulged to excess. One of THE EVOLUTION OF COPYRIGHT. 9 the first objects of men, in combining themselves in society, has been to aSord to the individual, in his pursuit of this instinct, the sanction and assistance of the laws, so far as may be consistent with the gen- eral advantage of the community. The author, like other people, seeks the pleasure and the profit of having at his own disposal what he produces. Literary production, wherever it is sound, is its own exceeding great reward ; but that does not destroy or diminish the author's desire and claim to be allowed to have at his disposal, like other people, that which he produces, and to be free to turn it to account. It happens that the thing which he produces is a thing hard for him to keep at his own disposal, easy for other people to appropriate ; but then, on the other hand, he is an interesting pro- ducer, giving often a great deal of pleasure by what he produces, and not provoking Nemesis by any huge and immoderate profits on his production, even when it is suffered to be at his own disposal. So society has taken him under its protection, and has sanctioned his property in his work, and enabled him to have it at his own disposal." Perhaps a consideration of the evolution of copy- right in the past will conduce to a closer understand- ing of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold's phrase, have afforded to the individual author the sanction of the law in possess- ing what he has produced ; and it is no less in- structive to note the successive enlargements of jurisprudence by which property in books-i— which is, as Lowell says, the creature of local municipal law — has slowly developed until it demands and re- ceives international recognition. I. The maxim that "there is no wrong without a remedy," indicates the line of legal development. lO THE QUESTION OF COPYRIGHT. The instinct of possession is strong; and in the early communities, where most things were in com- mon, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance — much as a dog defends his bone, growhng when it is taken from him, or even biting. If public opinion sup- ported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recog- nition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin ; but this action steadily widened in scope until it became an action for recovery ; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self- assertion and the resulting pressure of public opin- ion, which, as Lowell once tersely put it, is like that of the atmosphere : " You can't see it, but- it is fifteen pounds to the square inch all the same." The individual sense of wrong stimulates the moral growth of society at large ; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more mod- ern periods of development, the recognition of new THE EVOLUTION OF COPYRIGHT. 1 1 forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other indi- viduals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed — this being an effort to command the con- science of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the full- ness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legis- lative declaration of rights is still going on all about us and in all departments of law, as modern life de- velops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering's definition of a legal right as "a legally protected interest." As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was probably first recognized in the tools which early man made for himself, and in the animals or men whom he subdued ; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things — to actual physical possession — to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature ; it was 12 THE QUESTION OF COPYRIGHT. not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet ; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works. The Greek dramatists, like the dramatists of to- day, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents — more than twelve thou- sand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the success- ful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace {Ars Poetica, 345) speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manu- scripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author's THE EVOLUTION OF COPYRIGHT. 13 rights have been infringed ; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the inven- tion of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings ; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong ; he had thought mainly of the honor of a wide circulation of his writings ; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit ; and as soon as the author saw this profit diminished by an un- authorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this ; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims. It is "after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 145 1. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467 ; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474. In the beginning these printers were publishers also; most of their first books were Bibles, pr^ayer-books, 14 THE QUESTION OF COPYRIGHT. and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero's Offices — " the first tribute of the new art to polite literature," Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuncB, the revision of the text, called for scholarship of a high order ; this scholarship was sometimes possessed by the printer-publisher himself ; but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer's task ; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author's writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presenta- tion of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark ; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin ' ' If any lawyer objects to the use of the word " disseizin " in con- nection with other than real property, he is referred to Prof. T. B. Ames's articles on Disseizin of Chattels, in the Harvard Law Rmew, Jan. — March, i8go. THE EVOLUTION OF COPYRIGHT. 1 5 of the fruit of his labors ; and the earliest legal recognition of his rights was granted less than a • score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledg- ment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.' This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen ; it gave but a limited protection ; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent— a precedent which has broadened down the centuries until now, four hun- dred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a terri- tory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully's Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti. The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the pub- ' Sanuto, Script. Rerum. Italic, t. xxii., p. 1189; cited by Hallam, History of Middle Ages, chap. ix. , part ii. 1 6 THE QUESTION OF COPYRIGHT. Heist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phcenix"" — the first recorded instance of a copyright awarded • directly to an author. Other Italian states " en- couraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics," and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book ; and if the work went to press again, the publisher had to seek a second patent. In England, in 15 18, Richard Pynson, the King's Printer, issued the first book cum privilegio ; the title-page declaring that no one else should print or import in England any other copies for two years ; and in 1530 a privilege for seven years was granted to John Palsgrave " in the consideration of the value of his work and the time spent on it ; this being the first recognition of the nature of copyright as fur- nishing a reward to the author for his labor." ^ In 1533 Wynkyn de Worde obtained the king's privi- lege for his second edition of Witinton's Grammar. The first edition of this book had been issued ten years before, and during the decade it had been re- printed by Peter Trevers without leave — a despoil- ment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured pro- ' Bowker, Copyright, p. 5. " T. E. Scrutton, Laws of Copyright, p. 72. THE EVOLUTION OF COPYRIGHT. 17 tection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhe- ring bases the struggle for law on the instinct of ownership as something personal, and the feeHng that the person is attacked whenever a man is de- prived of his property ; and, as Walter Savage Landor wrote : " No property is so entirely and purely and religiously a man's own as what comes to him immediately from God, without intervention or participation." The development of copyright, and especially its rapid growth within the past cent- ury, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.' The invention of printing was almost simultaneous with the Reformation, with the discovery of Amer- ica, and with the first voyage around the Cape of Good Hope. There was in those days a ferment throughout Europe, and men's minds were making ready for a great outbreak. Of this movement, in- tellectual on one side and religious on the other, the governments of the time were afraid ; they saw that the press was spreading broadcast new ideas which might take root in the most inconvenient places, and spring up at the most inopportune moments ; so they sought at once to control the printing of books. In less than a century after Gutenberg had cast the first type, the privileges granted for the encouragement and reward of the printer-publisher and of the author were utilized to enable those in authority to prevent the sending forth of such works ' Jhering, The Struggle for Law (translated by J. J. Lalor). l8 THE QUESTION OF COPYRIGHT. as they might choose to consider treasonable or heretical. For a while, therefore, the history of the development of copyright is inextricably mixed with the story of press-censorship. In France, for ex- ample, the edict of Moulins, in 1566, forbade "any person whatsoever printing or causing to be printed any book or treatise without leave and permission of the king, and letters of privilege." * Of course, no privilege was granted to publisher or to author if the royal censors did not approve of the book. In England the " declared purpose of the Sta- tioners' Company, chartered by Philip and Mary in 1556, was to prevent the propagation of the Pro- testant Reformation." ^ The famous " Decree of Star Chamber concerning printing," issued in 1637, set forth, "that no person or persons whatsoever shall at anytime print or cause to be imprinted any book or pamphlet whatsoever, unless the same book or pamphlet, and also all and every the titles, epistles, prefaces, proems, preambles, introductions, tables, dedications, and other matters and things whatsoever thereunto annexed, or therewith imprinted, shall be first lawfully licensed." In his learned introduction to the beautiful edition of this decree, made by him for the Grolier Club, Mr. De Vinne remarks that at this time the people of England were boiling with discontent ; and, " an- noyed by a little hissing of steam," the ministers of Charles I. " closed all the valves and outlets, but did not draw or deaden the fires which made the steam ; " ' Alcide Darras, Du Droit des Auteurs, p. i6g. ^ E. S. Drone, A Treatise on the Law of Property in Intellectual Productions, p. 56. THE EVOLUTION OF COPYRIGHT. 19 then " they ^sat down in peace, gratified with their work, just before the explosion which destroyed them." This decree was made the eleventh day of July, 1637 ; and in 1641 the Star Chamber was abolished ; and eight years later the king was beheaded at Whitehall. The slow growth of a protection, which was in the beginning only a privilege granted at the caprice of the officials, into a legal right, to be obtained by the author by observing the simple formalities of regis- tration and deposit, is shown in a table given in the appendix (page 370) to the Report of the Copyright Commission (London, 1878). The salient dates in this table are these : " 1637. — Star Chamber Decree supporting copyright. 1643. — Ordinance of the Commonwealth concerning licensing. Copjfright maintained, but subordinate to political objects. 1662. — 13 and 14 Car. II., c. 33. — Licensing Act continued by suc- cessive Parliaments ; gives copyright coupled with license. 1710. — 8 Anne, t. 19. — First Copyright Act. Copyright to be for fourteen years, and if author then alive, for fourteen years more. Power to regulate price. 1814. — 54 Geo. III., u. 156. — Copyright to be for twenty-eight years absolutely, and further for the life of the author, if then living. 1842. — 5 and 6 Vict., c. 45. — Copyright to be for the life of the author and seven years longer, or for forty-two years, whichever term last expires." From Mr. Bowker's chapter on the History of Copyright in the United States, it is easy to draw up a similar table showing the development in this country : "I793. — Connecticut, in January, and Massachusetts, in March, passed acts granting copyrights for twenty-one years. In May 20 THE QUESTION OF COPYRIGHT. Congress recommended the States to pass acts granting copy- right for fourteen years — seemingly a step backward from the Connecticut and Massachusetts statutes. 1785 and 1786. — Copyright Acts passed in Virginia, New York, and New Jersey. 1786. — Adoption of the Constitution of the United States, authoriz- ing Congress ' to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries . ' 1790. — First United States Copyright Act. Copyright to citizens or residents for fourteen years, with a renewal for fourteen years more if the author were living at the expiration of the first term. 1831. — Copyright to be for twenty-eight years, with a renewal for fourteen years more, if the author, his widow, or his children are living at the expiration of the first term. 1856. — Act securing to dramatists stage-right; that is, the sole right to license the performance of a play. 1873-4. — The Copyright Laws were included in the Revised Statutes (sections 4948 to 4971)." From the exhaustive and excellent work of M. Lyon-Caen and M. Paul Delalain on Literary and Artistic Property'^ we see that France, now, perhaps, the foremost of all nations in the protection it ac- cords to literary property, lagged behind Great Britain and the United States in taking the second step in the evolution of copyright. It was in 1710 that the act of Anne gave the British author a legal right independent of the caprice of any ofificial ; and as soon as the United States came into being, the same right was promptly confirmed to our citizens ; but it was not until the fall of the ancient regime that a Frenchman was enabled to take out a copy- ' La Ptopri^te LitUraire et A rtistique : Lois Fran^aise} et ^tranghres (Paris, Pichon, 1889, 2 vols.), THE EVOLUTION OF COPYRIGHT. 21 right at will. Up to the eve of the Revolution of 1789, French authors could do no more, say MM. Lyon-Caen and Delalain, " than ask for a privilege which might always be refused them " (page 8). As was becoming in a country where the drama has ever been the most important department of lit- erature, the first step taken was a recognition of the stage-right of the dramatist, in a law passed in 1791. Before that, a printed play could have been acted in France by any one, but thereafter the ex- clusive right of performance was reserved to the playwright ; and at one bound the French went far beyond the limit of time for which any copyright was then granted either in England or America, as the duration of stage-right was to be for the author's life and for five years more. It is to be noted, also, that stage-right was not acquired by British and American authors for many years after 1791. Two years after the French law protecting stage- right, in the dark and bloody year of 1793, an act was passed in France granting copyright for the life of the author and for ten years after his death. It is worthy of remark that, as soon as the privi- leges and monopolies of the monarchy were abol- ished, the strong respect the French people have always felt for literature and art was shown by the extension of the term of copyright far beyond that then accorded in Great Britain and the United States ; and although both the British and the American term of copyright has been prolonged since 1793, so also has the French, and it is now 22 THE QUESTION OF COPYRIGHT. for life of the author and for fifty- years after his death. The rapid development of law within the past century and the effort it makes to keep pace with the moral sense of society — a sense that becomes finer as society becomes more complicated and as the perception of personal wrong is sharpened— can be seen in this brief summary of copyright develop- ment in France, where, but a hundred years ago, an author had only the power of asking for a privilege which might be refused him. The other countries of Europe, following the lead of France as they have been wont to do, have formulated copyright laws not unlike hers. In prolonging the duration of the term of copyright, one country has been even more liberal. Spain extends it for eighty years after the author's death. Hungary, Belgium, and Russia accept the French term of the author's life and half a century more. Germany, Austria, and Switzerland grant only thirty years after the author, dies. Italy gives the author copyright for his life, with exclusive control to his heirs for forty years after his death ; after that period the exclusive rights cease, but a royalty of five per cent, on the retail price of every copy of every edition, by whomsoever issued, must be paid to the author's heirs for a further term of forty years: thus a quasi-copyright is granted for a period extending to eighty years after the author's death, and the Italian term is approximated to the Spanish. Cer- tain of the Spanish-American nations have exceeded the liberality of the mother-country : in Mexico, in THE EVOLUTION OF COPYRIGHT. 23 Guatemala, and in Venezuela the author's rights are not terminated by the lapse of time, and copyright is perpetual.' To set down with precision what has been done in various countries will help us to see more clearly what remains to be done in our own. It is only by considering the trend of legal development that we can make sure of the direction in which efforts to- ward improvement can be guided most effectively. For example : the facts contained in the preceding paragraphs show that no one of the great nations of continental Europe grants copyright for a less term than the life of the author and a subsequent period varying from thirty to eighty years. A comparison also of the laws of the various countries, as con- tained in the invaluable volumes of MM. Lyon- Caen and Delalain, reveals to us the fact that there is a steady tendency to lengthen this term of years, and that the more recent the legislation the more likely is the term to be long. In Austria, for in- stance, where the' term was fixed in 1846, it is for thirty years after the author's death ; while in the twin-kingdom of Hungary, where the term was fixed in 1884, it is for fifty years. On a contrast of the terms of copyright granted by the chief nations of continental Europe with those granted by Great Britain and the United ' Here again it may be noted that certain decisions in the United States courts, to the effect that the performance of a play is not pub- lication, and that therefore an unpublished play is protected by the common law and not by the copyright acts, recognize the perpetual stage-right of any dramatist who will forego the doubtful profit of appearing in print. 24 THE QUESTION OF COPYRIGHT. States, it will be seen that the English-speaking race, which was first to make the change from priv- ilege to copyright, and was thus the foremost in the protection of the author, now lags sadly behind. The British law declares that the term of copyright shall be for the life of the author and only seven years thereafter, or for forty-two years, whichever term last expires. The American law does not even give an author copyright for the whole of his life, if he should be so unlucky as to survive forty-two years after the publication of his earlier books ; it grants copyright for twenty-eight years only, with a permission to the author himself, his widow, or his children to renew for fourteen years more. This is niggardly when set beside the liberality of France, to say nothing of that of Italy and Spain. Those who are unwilling to concede that the ethical devel- opment of France, Italy, and Spain is more advanced than that of Great Britain and the United States, at least as far as literary property is concerned, may find some comfort in recalling the fact that the British act was passed in 1842 and the American in 183 1 — and in threescore years the world moves. There is no need to dwell on the disadvantages of the existing American law, and on the injustice which it works. It may take from an author the control of his book at the very moment when he is at the height "of his fame and when the infirmities of age make the revenue from his copyrights most nec- essary. An example or two from contemporary American literature will serve to show the demerits of the existing law. The first part of Bancroft's THE. EVOLUTION OF COPYRIGHT. 25 , History of the United States, the history of the colonization, was published in three successive vol- umes in 1834, 1837, and 1840; and although the au- thor, before his death, revised and amended this part of his work, it has been lawful, since 1882, for any man to take the unrevised and incorrect first edition and to reprint it, despite the protests of the author, and in competition with the improved ver- sion which contains the results of the author's increased knowledge and keener taste. At this time of writing (1890) all books published in the United States prior to 1848 are open to any reprinter ; and the reprinter has not been slow to avail himself of this permission. The children of Fenimore Cooper are alive, and so are the nieces of Washington Irving ; but they derive no income from the rival reprints of the Leatherstocking Tales or of the Sketch Book, reproduced from the earliest editions without any of the authors' later emendations.' Though the farnily of Cooper and the family of Irving survive, Cooper and Irving are dead themselves, and cannot protest. But there are living American authors besides Bancroft who are despoiled in like manner. Half a dozen vol- umes were published by Mr. Whittier and by Dr. Holmes before 1848, and these early, immature, uncorrected verses are now reprinted and offered to the public as " Whittier' s Poems" and ''Holmes's Poems." Sometimes the tree of poesy flowers early and bears fruit late. So it is with Lowell, whose ' The emendations, having been made within forty-two years, are, of course, still guarded by copyright. 26 THE QUESTION OF COPYRIGHT. Heartsease and Rue we received with delight only a year or two ago, but whose Legend of Brittany , Vision of Sir Launfal, Fable for Critics and first series of Biglow Papers were all published forty-two years ago or more, and are therefore no longer the prop- erty of their author, but have passed from his con- trol absolutely and forever. Besides the broadening of a capricious privilege into a legal right, and besides the lengthening of the time during which this right is enforced, a steady progress of the idea that the literary laborer is worthy of his hire is to be seen in various newer and subsidiary developments. With the evolution of copyright, the author can now reserve certain secondary rights of abridgment, of adaptation, and of translation. In all the leading countries of the world the dramatist can now secure stage-right,' i.e., the sole right to authorize the performance of a play on a stage. Copyright and stage-right are wholly different ; and a dramatist is entitled to both. The author of a play has made something which may be capable of a double use, and it seems proper that he should derive profit from both uses. His play may be read only and not acted, like Lord Tennyson's Harold and Longfellow's Spanish Student, in which case the copyright is more valu- able than the stage-right. Or the play may be acted only, like the imported British melodramas, and of so slight a literary merit that no one would care ' Mr. Drone uses the word "playright," but this is identical in sound with " playwright," and it seems better to adopt the word "stage-right," first employed by Charles Reade. THE EVOLUTION OF COPYRIGHT. 27 to read it, in which case the stage-right would be Nmore valuable than the copyright. Or the drama may be both readable and actable, like Shakespeare's and Sheridan's plays, like Augier's and Labiche's, in which case the author derives a double profit, controlling the publication by copyright and con- trolling performance by stage-right. It was in 1791, as we have seen, that France granted stage-right. In England, " the first statute giving to dramatists the exclusive right of performing their plays was the 3 and 4 William IV., c. 15, passed in 1833," says Mr. Drone (page 601). In the United States, stage- right was granted in 185 1 to draniatists who had copyrighted their plays here. Closely akin to the stage-right accorded to the dramatist is the sole right of dramatization accorded to the novelist. Indeed, the latter is an obvious outgrowth of the former. Until the enormous in- crease of the reading public in this century, conse- quent upon the spread of education, the novel was an inferior form to the drama and far less profitable pecuniarily. It is only within the past hundred years — one might say, fairly enough, that it is only since the Waverley novels took the world by storm — that the romance has claimed equality with the play. Until it did so, no novelist felt wronged when his tale was turned to account on the stage, and no novelist ever thought of claiming a sole right to the theatrical use of his own story. Lodge, the author of Rosalynde, would have been greatly surprised if any one had told him that Shakespeare had made an improper use of his story in founding on it As You 28 THE QUESTION OF COPYRIGHT. Like It. On the contrary, in fact, literary history would furnish many an instance to prove that the writer of fiction felt that a pleasant compliment had been paid him when his material was made over by a writer for the stage. Scott, for example, aided Terry in adapting his novels for theatrical perform- ance ; and he did this without any thought of re- ward. But by the time that Dickens succeeded Scott as the most popular of English novelists the sentiment was changing. In Nicholas Nickleby the author protested with acerbity against the hack playwrights who made haste to put a story on the stage even before its serial publication was finished. His sense of injury was sharpened by the clumsy disfiguring of his work. Perhaps the injustice was never so apparent as when a British playwright, one Fitzball, captured Fenimore Cooper's Pilot in 1826 and turned Long Tom Cofifin into a British sailor ! — an act of piracy which a recent historian of the London theatres, Mr. H. B. Baker, records with hearty approval. The possibility of an outrage like this still exists in England. In France, of course, the novelist has long had the exclusive right to adapt his own story to the stage ; and in the United States, also, he has it, if he gives notice formally on every copy of the book itself that he desires to reserve to himself the right of dramatization. But England has not as yet advanced thus far ; and no English author can make sure that he may not see a play ill-made out of his disfigured novel. Charles Reade protested in vain against unauthorized dram- atization of his novels, and then, with character- THE EVOLUTION OF COPYRIGHT. 29 istic inconsistency, made plays out of novels by Anthony Trollope and Mrs. Hodgson Burnett with- out asking their consent. But the unauthorized British adapter may not lawfully print the play he has compounded from a copyright novel, as any multiplication of copies would be an infringement of the copyright ; and Mrs. Hodgson Burnett suc- ceeded in getting an injunction against an unauthor- ized dramatization of Little Lord Fauntleroy on proof that more than one copy of the unauthorized play had been made for use in the theatre. It is likely that one of the forthcoming modifications of the British law will be the extension to the novelist of the sole right to dramatize his own novel. II. From a consideration of the lengthening of the term of copyright and the development of certain subsidiary rights now acquired by an author, we come to a consideration of the next step in the process of evolution. This is the extension of an author's rights beyond the boundaries of the country of which he is a citizen, so that a book formally registered in one country shall by that single act and without further formality be protected from piracy ^ throughout the world. This great and needful improvement is now in course of accom- ' " Piracy '' is a term available for popular appeal but perhaps lacking in scientific precision. The present writer used it in a little pamphlet on American Authors and British Pirates rather by way of retort to English taunts. Yet the inexact use of the word indicates the tendency of public opinion. 30 THE QUESTION OF COPYRIGHT. plishment ; it is still far from complete, but year by year it advances farther and farther. In the beginning the sovereign who granted a privilege, or at his caprice withheld it, could not, however strong his good-will, protect his subject's book beyond the borders of his realm ; and even when privilege broadened into copyright, a book duly registered was protected only within the State wherein the certificate was taken out. Very soon after Venice accorded the first privilege to John of Spira, the extension of the protection to the limits of a single State only was found to be a great dis- advantage. Printing was invented when central Eu- rope was divided and subdivided into countless lit- tle states almost independent, but nominally bound together in the Holy Roman Empire. What is now the kingdom of Italy was cut up into more than a score .of separate states, each with its own laws and its own executive. What is now the German Em- pire was then a disconnected medley of electorates, margravates, duchies, and grand-duchies, bishoprics and principalities, free towns and knight-fees, with no centre, no head, and no unity of thought or of feeling or of action. The printer-publisher made an obvious effort for wider protection when he begged and obtained a privilege not only from the authori- ties of the State in which he was working but also from other sovereigns. Thus, when the Florentine edition of the Pandects was issued in 1553, the pub- lisher secured privileges in Florence first, and also in Spain, in the Two Sicilies, and in France. But privileges of this sort granted to non-residents were THE EVOLUTION OF COPYRIGHT. 3 1 very infrequent, and no really efficacious protection for the books printed in another State was practically attainable in this way. Such protection, indeed, was wholly contrary to the spirit of the times, which held that an alien had no rights. In France, for example, a ship wrecked on the coasts was seized by the feudal lord and retained as his, subject only to the salvage claim.^ In England a wreck belonged to the king unless a living being (man, dog, or cat) escaped alive from it ; and this claim of the crown to all the property of the unfortunate foreign owner of the lost ship was raised as late as 1771, when Lord Mansfield decided against it. When aliens were thus rudely robbed of their tangible possessions, without public protest, there was not likely to be felt any keen sense of wrong at the appropriation of a possession so intangible as copyright. What was needed was, first of all, an amelioration of the feeling toward aliens as such ; and second, such a federation of the petty states as would make a single copyright effective throughout a nation, and as would also make possible an international agreement for the reciprocal protection of literary property. Only within the past hundred years or so, has this consolidation into compact and homogeneous nation- alities taken place. In the last century, for example, Ireland had its own laws, and Irish pirates reprinted at will books covered by English copyright. In the preface to Sir Charles Grandison, published in 1753, Richardson, novelist and printer, inveighed against 'A. C. Bemheim, History of ike Law of Aliens (N. Y., 1885), p. 58. 32 THE QUESTION OF COPYRIGHT. the piratical customs of the Hibernian publishers. In Italy, what was published in Rome had no protection in Naples or Florence. In Germany, where Luther in his day had protested in vain against the reprint- ers, Goethe and Schiller were able to make but little money from their writings, as. tbese were con- stantly pirated in the other German states, and even imported into that in which they' were protected, to compete with the author's edition. In 1826, Goethe announced a complete' edition of his works, and, as a special honor to the poet in his old age, " the Bundestag undertook to secure him from piracy in German cities."^ With the union of Ireland and Great Britain, with the accretion about the kingdom of Sardinia of the other provinces of Italy, with the compacting of Germany under the hegemony of Prussia, this inter-provincial piracy has wholly disappeared within the limits of these national states. The suppression of international piracy passes through three phases. First, the nation whose citizens are most often despoiled — and this nation has nearly always been France — endeavors to nego- tiate reciprocity treaties, by which the writers of each of the contracting countries may be enabled to take out copyrights in the other. Thus France had, prior to 1852, special treaties'with Holland, Sardinia, Portugal, Hanover, and Great Britain. Secondly, a certain number of nations join in an international convention, extending to the citizens of all the copyright advantages that the citizens of each ' G. H. Lewes, Life and Works of Goethe, p. 545. THE EVOLUTION OF COPYRIGHT. 33 enjoy at home. Third, a State modifies its own local copyright law so as to remove the disability of the alien. This last step was taken by France in 1852; and in 1886 Belgium followed her example. The French, seeking equity, are willing to do equity ; they ask no questions as to the nationality or residence of an author who offers a book for copyright ; and they do not' demand reciprocity as a condition precedent. Time was when the chief complaint of French authors was against the Bel- gian reprinters ; but the Belgians, believing that the ship of state was ill-manned when she carried pirates in her crew, first made a treaty with France and then modified their local law into conformity with the French. These two nations, one of which was long the headquarters of piracy, now stand forward most honorably as the only two which really protect the full rights of an author. Most of the states which had special copyright treaties one with another have adhered to the con- vention of Berne, finally ratified in 1887. Among them are France, Belgium, Germany, Spain, Italy, Great Britain, and Switzerland. The adhesion of Austro-Hungary, Holland, Norway, and Sweden is likely not long to be delayed. The result of this convention is substantially to abolish the distinction between the subjects of the adhering powers and to give to the authors of each country the same faculty of copyright and of stage-right that they enjoy at home, without any annoying and expensive formali- ties of registration or deposit in the foreign State. The United States of America is now the only 3 34 THE QUESTION OF COPYRIGHT. one of the great powers of the world which abso- lutely refuses the protection of its laws to the books of a friendly alien.' From having been one of the foremost states of the world in the evolution of copyright, the United States has now become one of the most backward. Nothing could be more striking than a contrast of the liberality with which the American law treats the foreign inventor and the niggardliness with which it treats the foreign author. In his Popular Government (page 247) the late Sir Henry Sumner Maine declared that " the power to grant patents by federal authority has . . . made the American people the first in the world for the number and ingenuity of the inven- tions by which it has promoted the 'useful arts;' while, on the other hand, the neglect to exercise this power for the advantage of foreign writers has con- demned the whole American community to a liter- ary servitude unparalleled in the history of thought." ' If a foreign dramatist chooses to keep his play in manuscript, then the American courts will defend his stage-right ; but the for- eign dramatist is the only alien author whose literary property is assured to him by our courts. / November, l8go, III. LITERARY PROPERTY. AN HISTORICAL SKETCH. By Geo. Haven Putnam. (Originally published in 1884, in Mason and Lalor's Cyclopadia of Political Science. ) During the past twenty years there has been a very considerable increase in the extent of interna- tional 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 rec- ognize the extent to which such development must depend upon the inducements extended to literary producers, as well as upon the character of the com- petition 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 dispose of copies of an intellectual production." The English statute (5 and 6 Vict.) defines copy- 36 THE QUESTION OF COPYRIGHT. right 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., § 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 sacrd, la plus inatta- quable, et, si je puis, parler ainsi, la plus per sone lie de toutes les propriith, est I'ouvrage, fruit de la pens^e d'un ^crivain. And in the decree rendered by the convention, July 10, 1793, the preamble (written by Lakanal) declares that de toutes les propri^tds, la ■mains susceptible de contestation, cest, sans contrMt, celle des productions du ghiie : et si quelque chose petit ^tonner, cest gu'il ait fallii reconnaitre cette proprie'te, assurer son litre exercice par une loi positive ; cest quune aussi grande revolution que la notre ait /// n^cessaire pour nous ramener sur ce point, comme sur tout d'autres, aux simples ^Idments 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 Wege zu vervielfdltigen, steht dem Urheber desselben aus- schliesslich zu. Coppinger defines copyright as " the sole and ex- clusive 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 LITERARY PROPERTY. 37 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. . . . Prop- erty . . . precedes government. If a man ap- propriates 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 appropri- ation 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 pro- duction in the fullest sense of the word, even more so than a barrel of herrings, which have been appro- priated 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 38 THE QUESTION OF COPYRIGHT. an idea or a group of ideas, or the form of expres- sion of an ide£L 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 to-day 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 posi- tion that " Ideas are the common property of man- kind. 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 com- posed 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 LITERARY PROPERTY. 39 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 recogni- tion 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 pro- ductions, centuries later, of the first printing presses, were hardly cheaper." Martial records, in one of his epigrams, that the edition of his Xenii pould 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 Lucensis. The latter issued a special pocket edition of \hQ Epigrams. The poet prepared the advertisements for the book- sellers, 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 'Omnis in hoc gracili xeniorum turba libellq Constabit nummis quatuor empta tibj. 40 THE QUESTION OF COPYRIGHT. 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 Eunuchus to the aediles, and his Hecyra to the player Roscius ; while Juvenal reports that Statius would have starved if he had not suc- ceeded in selling to the actor Paris his tragedy of Agave. " Such sales," says Coppinger, " were con- sidered 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 emol- ument the fruits of another's labor." It is apparent from these and from similar refer- ences, that under the Roman Empire authors were in the habit of transferring to booksellers, for such con- sideration 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 Quatuor est nimium, poterit constare duobus. Et faciet lucrum bibliopola TryphoD. {^Efigrammata, lib. xiii. , ep. 3.) Qui tecum cupis esse meos ubicunque libellos. Et comites longse quseris habere vise, Hos erne quos arcet brevibus membrana tabellis : Scrinia da magnis, me manus una capit. ***** Libertum docti Lucensis quare secundi Limina post Pacis, Palladiumque Forum. Efigrammata, lib. i., ep. 3.) ' Hie meret sera liber Sosiis, hie et mare transit, Et longum nolo scriptori prorogat alvum. {Art. Poet., 345.) LITERARY PROPERTY. 41 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 theo- retical 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 occu- pation 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 par- 42 THE QUESTION OF COPYRIGHT. ticular 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 Wachter {Das Verlagsrecht, 1857), it was even the case that by a statute of the University of Paris, issued in 1223, the Parisian booksellers (who were in large part dependent upon the university) were enjoined to extend, as far as practicable, the dupli- cation of works of a certain class. The business of bookseller at that time consisted as much in the rent- ing out for reading and copying of authentic manu- script 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 circu- lation for his work, he came to regard the reproduc- tion of copies not as a reserved right and source of LITERARY PROPERTY. 43 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 existence competing and unauthorized editions, which diminished the pros- pects 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 {Beitrage zum deutschen Staats- und Fiirstenrecht), that conceded by the republic of Venice, January 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, Phcenix. No term of years appears to have been named in this " privilege." It appears, however, that most of the early Italian enactmerits in regard to literature were framed, not 44 THE QUESTION OF COPYRIGHT. SO much with reference to the protection of authors, as for the purpose of inducing printers (acting also as publishers) to undertake certain literary enter- prises 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 en- couragement, 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 undertak- ing 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 LITERARY PROPERTY. 45 all of the volumes issued previous to the Revolution will be found printed : Les Lettres du Rot, addressed, A nos antes et feaux conseillers, les gens tenons nos cours de Parlement . . . et autres nos justiciers, et qui font defenses it tons libr aires et imprimeurs et autres personnes de quelque quality et condition quelles soient, d'introduire aucun impression ^trangire (that is to say, any unauthorized reprint) dans aucun 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 remunera- tion 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 infring- ing 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, 46 THE QUESTION OF COPYRIGHT. while in the former it was stealing what had been confided to the public honor. The status' of literary property was further recog- nized and defined by the so-called Ordinances de Moulines of Henry II., in 1556, the declaration of Charles IX., in 1571, and the letters patent of Henry III., in 1576, but the character of the meth- ods of granting and defending copyrights was not changed in any material respects. By the decree of the National Assembly of August 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 18 10 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 restric- tion 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 worl^ should be made in France. In case the work be first published abroad, French copyright may subse- quently be secured by depositing two copies at the Ministry of the Interior in Paris, or with the secre- LITERARY PROPERTY. 47 tary 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 the poet Conrad Celtes, for the works of the poet Hroswista (Helena von Ros- sow, a nun of the Benedictine cloister of Garders- heim). As this author had been dead for 600 years, the privilege was evidently not issued for her protec- tion, but must rather have been based upon the idea of encouraging Celtes in a praiseworthy (and probably unremunerative) undertaking. Between the years 15 10 and 15 14 we find record of "privileges " issued by the Emperor MaximiHan in favor of the sermons of Geiler of Kaisersberg, and the writings of Schottius, Stabius, and others. In 1534 Luther's translation of the Bible was issued in Wittenberg under the protection of the " privilege " 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 per- 48 THE QUESTION OF COPYRIGHT. mitted 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 accom- plished by the unwieldy imperial machinery. In 1794 legislation was inaugurated in the Prus- sian 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 registry for the empire is kept at Leipzig. The protection of the LITERARY PROPERTY. 49 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 ex- piration 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 five per cent, of the published price. It is necessary to deposit two copies of the work, to- gether with a declaration in duplicate, at the pre- fecture of the province. No distinction is made be- tween citizens and aliens, and the provisions of the law are applicable to the authors of works first pub- lished 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 per- petual, 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 en- 4 5o THE QUESTION OF COPYRIGHT. dures for the life of the author, and for fifty years thereafter. The provisions of the law are made ap- plicable to the works of foreign authors only on condition 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 au- thor, 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 coun- try. 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 Span- ish government is authorized to conclude copyright treaties with foreign countries on the condition of complete reciprocity between the contracting par- ties. Under such an arrangement any author, or his representative, who has legally secured copyright in the one country, would be, without further for- malitiesj 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 publica- tion. 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 LITERARY PROPERTY. 51 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 na- tional 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 en- dures for forty-two years from the date of publica- tion, 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 ex- tends to all the British dominions; that aliens, wherever resident, shall be entitled to British copy- right 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 ar- 52 THE QUESTION OF COPYRIGHT. tide of Mr. Macleod (vol. i., p. 642). It is in Eng- land 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 unques- tioned 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 Camden, and Justice Yates, and also for the debate attending the framing of the Act of 1842, with the arguments of Talfourd, Lord Campbell, Justice Coleridge, Lord Macaulay, and Thomas Hood, the reader is referred to Mr. Macleod's paper. LITERARY PROPERTY. 53 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 fa- mous Speller. Webster journeyed from State capital to State capital, to urge upon governors and legis- latures 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 Caro- lina. The necessity for State laws on the subject was, however, obviated by the United States statute of 1790. In creating a public and legis- lative opinion which made such a law possible, Webster's writings and personal influence were all- important. Previous to the adoption of the Federal Constitu- tion, 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 four- teen 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 sug- gested by Madison. The Act of 183 1 extended the fourteen years to twenty-eight, with privilege to the 54 THE QUESTION OF COPYRIGHT. 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 Smith- sonian Institution required that one copy of the work copyrighted should be delivered to that insti- tution, 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., §§ 4948-4971). This provides that the business of copyrights shall be under charge of the Librarian of Congress; that copy- rights may be secured by any citizen of the United States or resident therein ; that the term of copy- right 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, LITERARY PROPERTY. 55 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 per- petual. 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 conimon law had been fully 56 THE QUESTION OF COPYRIGHT. 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 Wheaton 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 consti- tuted 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 literary 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 letter- press, sheet of music, map, chart, or plan separately pubhshed." The right of property in lectures, whether written or oral, is now confirmed by stat- ute, the most important English decision on the LITERARY PROPERTY. 57 point being that of Abernethy vs. Hutchinson, and American precedents being Bartlett vs. Crittenden, Keene vs. Kimball, and Putnam vs. Meyer. Copy- right 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 memo- rizing, were entitled to protection. Abridgments and abstracts, which can be called genuine and just, are also entitled to copyright. (Lawrence vs. Dana, Gray vs. Russell et al.) Ac- cording to English precedent, copyright cannot exist in a work of libelous, immoral, obscene, or irre- ligious 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 free- dom 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 blas- phemy 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 con- troverted. 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 58 THE QUESTION OF COPYRIGHT. point which, with many, would be regarded as the most important of all." In quoting a similar opin- ion 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 the 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 defence 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 estab- lished 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 in- fringements 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 con- sideration. 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 desig- nation of Irving' s Works. The plaintiff had for a number of years used this title to describe the au- thorized, complete, and revised writings of this author, in the shape in which he had finally pre- pared them for posterity. The plaintiff sought to LITERARY PROPERTY. 59 enjoin the sale, under the above title, of the frag- mentary work, on the several grounds that it misled the public, caused injury to the literary 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 noth- ing 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 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 dis- cussion of a century are thus summarized by Drone: I. 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 mo- nopoly 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 in- 6o THE QUESTION OF COPYRIGHT. ternational copyright was Prussia, which, in 1836, passed an act conceding the protection of the Prus- sian statute to the writers of every country which should grant reciprocity. In 1837 a copyright con- vention was concluded between the different mem- bers of the German confederation. This was followed by the English Act' of 1838, i 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 se- cured 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 arrange- ments with different countries. Under the general Copyright Act, no right of property is recognized in any book, etc., not first published in her majesty's dominions. Hence, British as well as foreign au- thors, 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 publi- cation is made. It may be noted here that the condition of " first publicatidn," 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 LITERARY PROPERTY. 6l the following countries : with Saxony, in 1846 ; France, in 1851 ; Prussia, in iSSS ; states of Ger- many 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 copy- right, 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 publishe'd in such other state. The authors of each state shall enjoy in the other the same protec- tion 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 trans- late 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 62 THE QUESTION OF COPYRIGHT. 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 transla- tion need be printed only on the first page. The importation into either of the two states of unau- thorized copies of works protected by the conven- tion is forbidden. A certified copy of the entry in the registry of either state ahaW prima facie confer an exclusive right of republication within such state. The provisions of the existing conventions be- tween 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 announce- ment 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 In- terior, 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 LITERARY PROPERTY. 63 Portugal, France and Italy, etc. They are as fol- lows: I. Complete reciprocity between the con- tracting parties. 2. Treatment of each nation by the other as the most favored nation. 3. Any au- thor or 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 Ger- many, as framed in 1883, is a step in advance in many ways. By Article 10, 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 transla- tions. The author is to retain his right of transla- tion for ten years, instead of the five hitherto allowed. When a work is issued in parts, the ten years are 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 literary association was organ- 64 THE QUESTION OF COPYRIGHT. ized some years ago, with Victor Hugo as its first president, and has been of service in calling atten- tion to defects in existing enactments and conven- tions for the protection of property in literature. It has recently called special attention to the ex- ceptional 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 im- portant as between Great Britain and the United States. The interests of authors, of readers, of pub- lishers, of national literature and of national moral- ity, 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 an adequate acknowledgment of the rights of the producers of such literature. It is a disgrace that the two great English-speak- ing people, claiming to stand among the most en- lightened 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 mortify- ing 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 legal- LITERARY PROPERTY. 65 ized remuneration from the American editions of their works, has therefore been greater than the cor- responding direct loss to American authors. For this and for other reasons, the suggestions and prop- ositions 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 lead- ing 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 suc- cess. 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 educa- tion and discussion a more enlightened public under- standing. 66 THE QUESTION OF COPYRIGHT. In 1838, after the passing of the first International Copyright Act in Great Britain, Lord Palmerston in- vited the American government to co-operate in estabhshing a copyright convention between the •two countries. In the year previous, Henry Clay, as chairman of the joint Library Committee, had re- ported 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 pro- tective 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 re- port or Lord Palmerston's proposal. In 1840 Mr. G. P. Putnam issued in pamphlet form An Argu- ment 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 ob- tained 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 gonsiderr LITERARY PROPERTY. 67 ations, that an international copyright would pre- vent 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 muti- lation 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 Committee 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 con- vention, they advised: i. That the foreign author must be required to register the title of his work in the United States before its publication abroad. 2. That the work, to secure protection, must be issued in the United States within thirty days of its publication abroad ; and 3. 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 68 THE QUESTION OF COPYRIGHT. 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. Irenaeus Prime, Henry Ivison, James Parton, and Egbert Hazard, calling together a meeting for the consideration of the subject of international copyright. The meet- ing was held on the 9th of April, Mr. Bryant pre- siding, 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 Con- gress, 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 me- morial, loi were those of authors, and 19 of publishers, LITERARY PROPERTY. 69 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 pro- vided 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 recom- mitted 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 ab- sorbing 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 stage as to enable an expression of public opinion to be fairly arrived at. In 1871 Mr. Cox, of New York, intro- duced 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 pub- lishers, held in New York, a majority of the firms present were in favor of the provision of Mr. Cox's 70 THE QUESTION OP COPYRIGHT, 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 illustra- tions was an economic absurdity, and that an English publishing house could, in any case, through an Amer- ican 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 pro- vided 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 inter- national copyright. These four reports were submitted to the Library Committee, together with one or two individual sug- gestions, of which the most noteworthy were those of Harper & Bros, and of Mr. J. P. Morton, a book- seller of Louisville. Messrs. Harper, in a letter pre- sented by their counsel, took the broad ground that " any measure of international copyright was objec- tionable 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 LITERARY PROPERTY. 7 1 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 represent- ative ten per cent, of the wholesale price. This sug- gestion 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 chair- man. 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 hinderance to the diffusion of knowledge among the people, and to the cause of American education." The commission appointed by the British govern- ment in 1876, to make inquiry in regard to the laws and regulations relating to home, colonial, and inter- national 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 72 THE QUESTION OF COPYRIGHT. of a retaliatory character with a view of enforcing, incidentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion that, on the highest public grounds of policy and expediency, it is advisable that our 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, based upon principles of wide equity, and planned for the permanent advantage of literature in Eng- land 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 copy- right question" such utterances as the resolutions adopted in the meeting previously referred to, held in Philadelphia in January, 1872. The rneeting was pre- sided over by Henry Carey Baird, and may be con- sidered as having represented the opinions of the Pennsylvania protectionists — opinions which, while not, as I believe, shared by the majority of our com- munity, do still succeed in shaping the economic pol-, icy of the nation. The resolutions are as follows: LITERARY PROPERTY. 7^ i. 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 institu- tions, 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 literary 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 giv- en, 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, 74 THE QUESTION OF COPYRIGHT. the productions into which have been absorbed the gray matter of his brain, and, possibly, the best part of his Hfe. In regard to the third proposition, it may be said that the protection accorded to American authors is, according to their testimony, most unremuner- ative and unsatisfactory ; and it is difficult to under- stand why an European author, who has 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 recog- nition 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, be doubted whether education as a whole, including the important branch of ethics, is advanced by permitting our citizens to appropriate, without com- pensation, the labor of others, while through such appropriation they are also assisting to deprive our LITERARY PROPERTY. 75 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, be pernicious and dangerous when it arouses Pennsyl- vania 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 copy- right treaty was prepared, which received the sup- port 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 previ- ously 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 Philadel- phians seemed most likely to secure the general support required ; and it was believed that, if a •jd THE QUESTION OF COPYRIGHT. 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 simultane- ously 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 pro- tection 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 electrotypes 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 re- manufactured in this country. The authors and publishers who gave their signatures, under protest, to the petition in behalf of this treaty, objected prin- cipally 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 limita- tion as three months, while a disadvantage to all LITERARY PROPERTY. 'J'J authors whose reputations were not sufficiently assured to enable them to make advance agree- ments for their works, would be especially detri- mental 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 signa- tures from the petition in behalf of the treaty, being of opinion that even if it might not prove practi- cable to amend this before it was put into effect, amendments could at 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 govern- ment would be interested in completing such treaty, 78 THE QUESTION OF COPYRIGHT. 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 Asso- ciation 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 con- gratulated upon the firgt 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 Thorn- ton, the British minister in Washington, received instructions from London to proceed to the consid- eration 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 1 88 1. 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, 1883), been no evidence of any interest in it on the part of the present administration. It appears as if further consideration for the LITERARY PROPERTY. 79 treaty can be secured only on the strength of a popu- lar demand, based on a correct understanding of the rights and just requirements of authors, American and foreign, and on an inteIHgent appreciation of the unworthy position toward the question at pres- ent occupied by the United States, which alone among civilized nations has failed to give full recog- nition 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 concep- tion of property in literary ideas is of necessity closely bound up with the conception of property in material things. In tracing through successive cent- uries 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 oc- cupied, 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 cgnception by the Roman 8o THE QUESTION OF COPYRIGHT. control of the imperial 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 ex- tended by the growth, through commerce, of inter- national relations — a growth much retarded by feudal claims and feudal strifes. The robber-barons 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 com- munities, still hampered by the baronial standard, built up at their gates barriers against the admis- sion 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 im- poverishment. Barons and traders were alike fight- ing 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 cannot be called complete if it is to be ham- pered 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 contrj- LITERARY PROPERTY. 8 1 bution to the cost of carrying on the organization of the community under the protection of which his labor has been accompHshed, and to the single limi- tation 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 com- modities, 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 quan- tity as a bonus to some of his favored fellow-citizens. The opponents of international copyright assert that the producers of literary works should be at liberty to sell them only within certain political bounda- ries. 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 ha.d benefited, but upon the extent of the political boundaries of the country in which he hap- pened 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 develop- ment of international ethics and humanitarian prin- ciples, 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 wel- fare was not hampered, but furthered, by the pros- perity of their neighbors, reciprocity took the place 6 82 THE QUESTION OF COPYRIGHT. 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 bound- aries, and the increasing assent to the claim that the producer is entitled to compensation proportioned to the extent of the service rendered by his pro- duction, and to the' number of his fellow-men bene- fited by this, have secured international copyright arrangements on the part of all countries where literature exists, excepting only the great republic, which was 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 per- fect as the faculties employed and labor bestowed are entirely and perfectly his own. " If this claim be accepted," says Noah Webster, " it is difiScult to understand on what logical principle a legislature LITERARY PROPERTY. 83 or court can determine that an author enjoys only di temporary property m his own productions. If a man's right to his o^n property in writing is as per- fect 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 genera- tions for the highest and most necessary produc- tions 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 com- munity. If a popular deniand existed or could be 84 THE QUESTION OF COPYRIGHT. created for an article, it would doubtless be pro- duced 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 re- munerate the producer and owner, would be pro- portionately higher. A further consideration ob- tains 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 In- stitutes ; and the history of literature affords, of course, hundreds of instances in which there would have been sufificient 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 con- tinued interest. The efforts in this country in behalf of inter- national copyright have been always more or less hampered by the question being confused with that LITERARY PROPERTY. 85 of a protective tariff. The strongest opposition to a copyright measure has uniformly come from pro- tectionists. 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. Ameri- can authors are manufacturers who are simply ask- ing, 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 may facilitate their efforts to secure compensation for such of their own goods as are enjoyed by foreigners. These are claims with which a protectionist who is interested in develop- ing American industry ought certainly to be in sym- pathy. The contingency that troubles him, how- ever, 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 mak- ing these copies may be lost to American print- ers, binders, apd 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 Phila- 86 THE QUESTION OF COPYRIGHT. delphia resolutions lay so much stress, that the labor of preparing the editions of his books be econo- mized 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 aach market. It is, then, to the advantage of the consumer that, what- ever copyright arrangement be made, nothing shall stand in the way of foreign stereotypes and illus- trations 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 them- selves in favor of an international copyright measure, and some others who have fears as to our publish- ing interest being able to hold its own against any open competition, insist upon the condition that foreign works, to obtain copyright, n\ust 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 ma- LITEBIARY PROPERTY. 87 terially the outlay to be incurred by the American publisher in the production of his edition, it pro- portionately 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 permit- ting 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 con- tract, preventing the producer from making such arrangements for supplying the public as seem best to him ; and, secondly, it undertakes, by paternal legislation, to fix the remuneration that shall be given to the producer for his work, and to limit the prices at which this work shall be furnished to the consumer. There is no more equity in the govern- ment'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 and 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 copy- right, and of any copyright, a confusing and futile absurdity. A British author could hardly obtain much satis- faction from an arrangement which, while prevent- ing him from placing his American business in the hands of a publishing house selected by himself, 88 THE QUESTION OF COPYRIGHT. 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 exer- cise 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 innumer- able law suits, and would find the expenses of the collection exceed the receipts. The benefit to the public would be no more ap- " parent. Any gain in the cheapness of the editions produced would be more than oiTset by their un- satisfactoriness ; they would, in the majority of cases, be untrustworthy as to accuracy or com- pleteness, and be hastily and flimsily manufactured. A great many enterprises, also, desirable in them- selves, 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 success- ful, 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 LITERARY PROPERTY. 89 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 print- ing 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: i. That this would be a direct interference with the laws of trade, under which the author had the right to make his own bargains. 2. No legislature was competent to determine what was a " fair rate of profit " for an author. 3. No average royalty could be determined which could give a fair recom- pense for the different amounts and kinds of labor given to the production of different classes of books. 4. 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. 5. If books are to be cheapened by such a measure, it must be at the expense of some portion of the profits now going to the authors and publishers ; the assumption is, that book producers and distributers do not un- derstand their business, but require to be instructed by the state how to carry it on, and that the pub- 90 THE QUESTION OF COPYRIGHT. lishing business alone needs to have its returns regulated by law. 6. 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. 7. For the enterprises of the most lasting importance to the public, requir- ing 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. 8. Open competition of this kind would, in the end, result in crushing out the smaller pub- lishers, 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 un- profitable 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 inter- national 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 pay- ments to foreign authofs, xyhich has beconie, espe- LITERARY PROPERTY. 9 1 cially during the last twenty-five years, a matter of very considerable importance. Some of the English authors who testified before the British commission stated that the payments from the United States for their books exceeded their receipts in Great Britain. These payments secure, of course, to the American publisher no title of any kind to the books. In some cases, they obtain for him the use of advance sheets, by means of which he is able to get his edition printed a week or two in advance of any unauthorized edition that might be prepared. In many cases, however, payments have been made some time after the publication of the works, and when there was no longer even the slight advantage of " advance sheets " to be gained from them. While the authorization of the English author can convey no title or means of defence against the interference of rival editions, the leading publishing houses have, with very inconsiderable exceptions, respected each 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 un- derstanding 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, recog- nition being made of the rights (in equity) of the author. In view of the considerable amount of harsh language that has been expended in Englarid 92 THE QUESTION OF COPYRIGHT. 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 sub- stantiated — 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. Eng- lish 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, ten per cent, of the works issued in England in that year were American reprints. The acknowl- edgments, 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 pay- ing 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 Ameri- can authors. LITERARY PROPERTY. 93 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 pub- lishers 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 rela- tions 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 rbcent English fiction. The publishers of these series reap the advantage of the literary judgment and foreign connections of the older publishing houses, and, taking possession of material that has been carefully selected and liberally paid for, are able to offer it to the public at prices which are cer- tainly 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 hereto- fore dealt in standard fiction, and which are not prepared to respect the international arrangements or trade courtesies of the older houses. 94 THE QUESTION OF COPYRIGHT. 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 Hterary 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-defence, and that it would in all probability not be continued after the necessity for self-defence had passed by. A good many of its numbers include works for which the usual English payments have been made, and it is probable that, in this shape, books so paid for cannot secure a remunerative sale. It seems safe to conclude, therefore, that their publication is not, in the literal sense of the term, a business investment, and that the undertaking 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 edi- tions of English works, for the "advance sheets" and " American market " of which United States publishers have paid liberal prices. Some enterpris- ing 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 LITERARY PROPERTY. 95 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 prop- erty, and in emphasizing the need of an inter- national 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 copyright as either inex- pedient 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 product 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.' June, 1884. ' For the account of the realization of these prophecies, at least in part, seven years later, the reader is referred to a subsequent chapter in this volume, in which will be found the text of the International Copyright Bill of 1891. IV. DEVELOPMENT OF STATUTORY COPY- RIGHT IN ENGLAND. By R. R. Bowker. The statute of Anne, the foundation of the pres- ent copyright system, which took effect April lo, 1710, gave the author of works then existing, or his assigns, the sole right of printing for twenty-one years from that date and no longer ; of works not printed, for fourteen years and no longer, except in case he were alive at the expiration of that term, when he could have the privilege prolonged for another fourteen years. Penalties were provided, which could not be exacted unless the books were registered with the Stationers' Company, and which must be sued for within three months after the of- fence. If too high prices were charged, the queen's officers might order them lowered. A book could not be imported without written consent of the owner of the copyright. The number of deposit copies was increased to nine. The act was not to prejudice any previous rights of the universities and others. This act did not touch the question of rights at common law, and soon after its statutory term of protection on previously printed books expired, in DEVELOPMENT OF COPYRIGHT IN ENGLAND. 97 1 73 1, lawsuits began. The first was that of Eyre vs. Walker, in which Sir Joseph Jekyll granted, in 173s, an injunction as to Tke Whole Duty of Man, which had been first published in 1657, or seventy- eight years before. In this and several other cases the Court of Chancery issued injunctions on the theory that the legal right was unquestioned. But in 1769 the famous case of Millar vs. Taylor, as to the copyright of Thomson's Seasons, brought direct- ly before the Court of King's Bench the question whether rights at common law still existed, aside from the statute and its period of protection. In this case Lord Mansfield and two other judges held that an author had, at common law, a perpetual copyright, independent of statute, one dissenting justice holding that there was no such property at common law. In 1774, in the case of Donaldsons vs. Beckett, this decision was appealed from, and the issue was carried to the highest tribunal, the House of Lords. The House of Lords propounded five questions to the judges. These, with the replies,' were as fol- lows : » I. Whether, at common law, an author of any book or literary com- position had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published, and sold the same- without his consent ? Yes, 10 to i that he had the sole right, etc. , and 8 to 3 that he might bring the action. ' The votes on these decisions are given differently in the several copyright authorities. These figures are corrected from 4 Burrow's Reports, 2408, the leading English parliamentary reports, and are probably right. 7 98 THE QUESTION OF COPYRIGHT. II. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary com- position ; and might any person afterward reprint and sell, for his own benefit, such book or literary composition against the will of the author ? No, 7 to 4. III. If such action would have lain at common law, is it taken away by the statute of 8 Anne ? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute and on the terms and conditions prescribed thereby ? Yes, 6 to 5. IV. Whether the author of any literary composition and his as- signs had the sole right of printing and publishing the same in per- petuity, by the common law ? Yes, 7 to 4. V. Whether this right is any way impeached, restrained, or taken away by the statute 8 Anne ? Yes, 6 to 5. These decisions, that there was perpetual copy- right at common law, which was not lost by pub- lication, but that the statute of Anne took away that right and confined remedies to the statutory provisions, were directly contrary to the previous decrees of the courts, and on a motion seconded by the Lord Chancellor, the House of Lords, 22 to 11, reversed the decree in the case at issue. This con- struction by the Lords, in the case of Donaldsons vs. Beckett, of the statute of Anne, has practically " laid down the law " for England and America ever since. Two protests against this action deserve note. The first, that of the universities, was met by an act of 1775, which granted to the English and Scotch universities and to the colleges of Eton, Westminster, and Winchester (Dublin was added in 1801) perpetual copyright in works bequeathed to and printed by them. The other, that of the DEVELOPMENT OF COPYRIGHT IN ENGLAND. 99 booksellers, presented to the Commons February 28, 1774, set forth that the petitioners had invested large sums in the belief of perpetuity of copyright, but a bill for their relief was rejected. In 1801 an act was passed authorizing suits for damages at com- mon law, as well as penalties under statute during the period of protection of the statute, the need for such a law having been shown in the case of Beck- ford vs. Hood, wherein the court had to "stretch a point " to protect the plaintiff's rights in an anony- mous book which he had not entered in the Sta- tioners' Register. An Act of 18 14 extended copy- right to twenty-eight years and for the remainder of the life of a surviving author, and relieved the author of the necessity of delivering the eleven library copies,- except on demand. These deposit copies were reduced to five by the Act of 1836. In 1 841, under the leadership of Sergeant Tal- fourd, a great debate on copyright, in which Ma- caulay took a leading part in favor of restricted copyright, was started in the Commons, which re- sulted in the act of 1842 (5 and 6 Vict.), repealing the previous acts, and presenting a new code of copyright. It practically preserved, however, the restrictions of the statute of Anne. The copyright term was made the author's lifetime and seven years beyond, but in any event at least forty-two years. The Judicial Committee of the Privy Council may authorize publication of a posthumous work in case the proprietor of the copyright refuse to publish. Articles in periodicals, etc., have the same copy- right term, but they revert to the author after lOO THE QUESTION OF COPYRIGHT. twenty-eight years. Subsequent acts extend copy- right to prints and like art works, designs for manu- factures, sculptures, dramas, musical compositions, lectures, for various terms and under differing con- ditions. The present law of England as to copyright, says the Report of the Royal Copyright Commission, in a Blue Book of 1878, " consists partly of the pro- visions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the sub- ject, and partly of common law principles, nowhere stated in any definite or authoritative way, but im- plied in a considerable number of reported cases scattered over the law reports." The Digest, by Sir James Stephen, appended to this report, is presented by the commission as "a. correct state- ment of the law as it stands." This Digest is, per- haps, the most valuable single contribution yet made to the literature of copyright, but the fre- quency with which such phrases occur as " it is prob- able, -but not certain," " it is uncertain," " probably," " it seems," show the state of the law, " wholly des- titute of any sort of arrangement, incomplete, often obscure," as says the report itself. The Digest is accompanied, in parallel columns, with alterations suggested by the commission, and it is much to be regretted that their work failed to reach the ex- pected result of an Act of Parliament. The evi- dence taken by the commissioners forms a second Blue Book, also of great value. A new copyright law is now under consideration in England. It seems possible that, under the precedent of DEVELOPMENT OF COPYRIGHT IN ENGLAND. lOI the acts of 1775 and 1801, the common law rights, practically taken away by the statute of Anne, could be restored by legislation. Its restrictions have not only ruled the practice of England ever since, but they were embodied in the Constitution of the United States, and have influenced alike our legis- lators and our courts. December, 1885. SUMMARY OF COPYRIGHT LEGISLA- TION IN THE UNITED STATES. By R. R. Bowker. The Constitution of the United States authorized Congress "to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respect- ive writings and discoveries." Previous to its adop- tion, in 1787, the nation had no power to act, but on Madison's motion. Congress, in May, 1783, rec- ommended the States to pass acts securing copy- right for fourteen years. Connecticut, in January, 1783, and Massachusetts, in March, 1783, had al- ready provided copyright for twenty-one years. Virginia, in 1785, New York and New Jersey, in 1786, also passed copyright acts, and other States were considering them — thanks to the vigorous copyright crusade of Noah Webster, who travelled from capital to capital — when the United States Statute of 1790 made them unnecessary. This act followed the precedent of the English act of 17 10, and gave to authors who were citizens or residents, their heirs and assigns, copyrights in books, maps, and charts for fourteen years, with renewal for four- teen years more, if the author were living at expi- COPYRIGHT IN THE UNITED STATES. IO3 ration of the first term. A printed title must be deposited before publication in the clerk's office of the local United States^ District Court ; notice must be printed four times in a newspaper within two months after publication ; a copy must be deposited with the United States Secretary of State within six months after publication ; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the copyright owner, half to the United States ; a remedy was provided against unauthorized pubhcation of manuscripts. This original and fundamental act was followed by others — in 1802, requiring copyright record to be printed on or next the title-page, and including designs, engravings, and etchings ; in 1819, giving United States Circuit Courts original jurisdiction in copyright cases; in 183 1 (a consolidation of pre- vious acts), including musical compositions, extend- ing the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Sec- retary of State) within three months after pub- lication ; in 1834, requiring record of assignment in the court of original entry ; in 1846 (the act estab- lishing the Smithsonian Institution), requiring one copy to be delivered to that, and one to the Library of Congress ; in 1856, securing to dramatists the right of performance; in 1859, repealing the pro- vision of 1846 for the deposit of copies, and making the Interior Department instead of the State De- I04 THE QUESTION OF COPYRIGHT. partment the copyright custodian ; in 1861, provid- ing for appeal in all copyright cases to the Supreme Court ; in 1865, one act again requiring deposit with the Library of Congress, within one month from publi- cation, another including photographs and negatives ; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, when a general act took the place of all, in- cluding " paintings, drawings, chromos, statues, statu- ary, and models or designs intended to be perfected as works of the fine arts." This did away with the local District Court system of registry, and made the Librarian of Congress the copyright ofificer, with whom printed title must be filed before, and two copies deposited within ten days after, publication. In 1873-74 the copyright act was included in the Re- vised Statutes as Sections 4948 to 4971 (also see §§ 629 and 699), and in 1874 an amendatory act made legal a short form of record, " Copyright, 18 — , by A. B.," and relegated labels to the Patent OfiSce. The act of 1790 received an interpretation, in 1834, in the case of Wheaton vs. Peters (rival law reports), at the bar of the United States Supreme Court, which placed copyright in the United States exactly in the status it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling prec- edent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States, and that (English) com- jiion law as to copyright had not been adopted in COPYRIGHT IN THE UNITED STATES. I05 Pennsylvania, where the case arose. So late as 1880, in Putnam vs. Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly '^^ provided, that nothing in this act shall extend to, affect, prej- udice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the New York Supreme Court decided that the precedent of Wheaton vs. Peters nevertheless held. As in the English case of Donaldsons vs. Beckett, the decision in the American ruling case came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Jus- tices Thompson and Baldwin dissenting, a seventh judge being absent. The opinions of the dissenting judges (see Drone, p. 43 et seq.) constitute one of the strongest statements ever made of natural rights in literary property, in opposition to the ruling that the right is solely the creature of the statute, " An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality." The application of copyright law, unlike that re- garding patents, is solely a question of the courts. The Librarian of Congress is simply an officer of record, and makes no decisions, as is well stated in his general circular in reply to queries : " I have to advise you that no question concerning the validity of a copyright can be determined under our laws by any other authority than a United States Court. This office has no discretion or author- I06 THE QUESTION OF COPYRIGHT. ity to refuse any application for a copyright coming within the pro- visions of the law, and all questions as to. priority or infringement are purely judicial questions, with which the undersigned has nothing to do. " A certificate of copyright i^ prima facie evidence of an exclusive title, and is highly valuable as the foundation of a legal claim to the property involved in the publication. As no claim to exclusive property in the contents of a printed book or other article can be enforced under the common law, Congress has very properly pro- vided the guarantees of such property which are embodied in the ' Act to revise, consolidate, and amend the statutes relating to patents and copyrights,' approved July 8, 1870. If you obtain a copyright under the provisions of this act, you can claim damages from any person infringing your rights by printing or selling the same article ; but upon all questions as to what constitutes an infringement, or what measure of damages can be recovered, all parties are left te their proper remedy in the courts of the United States. " The many perplexities that arise under our com- plicated and unsatisfactory law, as it stands at pres- ent, suggest the need here, as in England, of a thorough remodeling of our copyright system. December, 1885. VI. THE COPYRIGHT LAW OF THE UNITED STATES ACCORDING TO THE ACT OF JULY, 1870. The following sections of the Revised Statutes and subsequent acts constituted, until July i, 1891, the Copyright Law of the United States : Revised Statute of the United States, being the Act of July 8, 1870, as contained in the Revised Statutes, Second Edition, 1878, page 957- Section 4948. AH records and other things relating to copyrights and required by law to be preserved, shall be under the control of the Librarian of Congress, and kept and preserved in the Library of Congress ; and the Librarian of Congress shall have the imme- diate care and supervision thereof, and, under the supervision of the joint Committee of Congress on the Library, shall perform all acts and duties required by law touching copyrights. Sec. 4949. The seal ^provided for the office of the Librarian of Congress shall be the seal thereof, and by it all records and papers issued from the office and to be used in evidence shall be authen- ticated. Sec. 4950. The Librarian of Congress shall give a bond, with sureties, to the Treasurer of the United States, in the sum of five thousand dollars, with the condition that he will render to the proper officers of the Treasury a true account of all moneys received by virtue of his office. Sec. 4951. The Librarian of Congress shall make an annual I08 THE QUESTION OF COPYRIGHT. report to Congress of thi number and description of copyright pub- lications for which entries have been made during the year. Sec. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print,' or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such persons shall, upon complying with the pro- visions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same ; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or repre- sented by others. And authors may reserve the right to dramatize or to translate their own works. Sec. 4953. Copyrights shall be granted for the term of twenty- eight years from the time of recording the title thereof, in the man- ner hereinafter directed. Sec. 4954. The author, inventor, or designer, if he be still living and a citizen of the United States or resident therein, or his widow or children, if he be dead, shall have the same exclusive right con- tinued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers, printed in the United States, for the space of four weeks. Sec. 4955. Copyrights shall be assignable in law, by any instru- ment of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution ; in default of which it shall be void as against any subsequent pur- chaser or mortgagee for a valuable consideration, without notice. Sec. 4956. No person shall be entitled to a copyright unless he shall, before publication, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Con- gress, at Washington, District of Columbia, a printed copy of the ' See Act of 1874, § 3, post, p. 40. COPYRIGHT LAW OF THE UNITED STATES. IO9 title of the book or other article, or -a. description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he desires a copyright, nor unless he shall also, within ten days from the publication thereof, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same. Sec. 4957. The Librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to be kept for that purpose, in the words following : ' ' Library of Congress, to wit : Be it remembered that on the day of , A, B., of , hath deposited in this office the title of a book (map, chart, or other- wise, as the case may be, or description of the article), the title or description of which is in the following wofds, to wit : (here insert the title or description) the right whereof he claims as author (origi- nator, or proprietor, as the case may be), in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress.'' And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to. the proprietor when- ever he shall require it. Sec. 4958. The Librarian of Congress shall receive, from the per- sons to whom the services designated are rendered, the following fees : First. For recording the title or description of any copyright book or other article, fifty cents. Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents. Third. For recording any instrument of writing for the assign- ment of a copyright, fifteen cents for every one hundred words. ' Fourth. For every copy of an assignment, ten cents for every one hundred words.' All fees so received shall be paid into the Treasury of the United States. Sec. 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress at Washington, ' See Act of 1874, § 2, post, p. 40. no THE QUESTION OF COPYRIGHT. District of Columbia, within ten days after its publication, two com- plete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and a copy of every subsequent edition wherein any substantial changes shall be made. Sec. 4960. For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description or photograph, required by sections four thou- sand nine hundred and fifty-six, and four thousand nine hundred and fifty-nine, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any District Court of the United States within the jurisdiction of which the delinquent may reside or be found. , Sec. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor ; and when so delivered he shall mail it to its destination. Sec. 4962. No person shall maintain an action for the infringe- ment of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chrorao, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, the following words, " Entered according to Act of Congress, in the year , by A. B., in the ofiice of the Librarian of Congress, at Washington." ' Sec. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable' one-half for the person who shall sue for such penalty, and one-half to the use of the United States. Sec. 4964. Every person who, after the recording of the title of any book as provided by this chapter, shall within the term limited, " See Act of 1874, | i, fast, p. 39. COPYRIGHT LAW OF THE UNITED STATES. Ill and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction. Sec. 4965. If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photo- graph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter, shall, within the term limited, and without the consent of the pro- prietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale ; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale ; one-half thereof to the proprietor and the other half to the use of the United States. Sec. 4966. Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, with- out the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just. Sec. 4967. Every person who shall print or publish any manu- script whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury. Sec. 4968. No action shall be maintained in any case of forfeit- 112 THE QUESTION OF COPYRIGHT. ure or penalty under the copyright laws, unless the same is com- menced within two years after the cause of action has arisen. Sec. 4969. In all actions arising under the laws respecting copy- rights, the defendant may plead the general issue, and give the spe- cial matter in evidence. Sec. 4970. The Circuit Courts, and District Courts having the juris- diction of Circuit Courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable. Sec. 4971. Nothing in this chapter shall be construed to prohibit the' printing, publishing, importation, or Sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein. Act of June 18, 1874. An Act to amend the law relating to patents, trade-marks, and copyrights, as contained in the Supplement to the Revised Statutes, v. i, 1881,^. 40. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, [Section i] That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book ; or if a map, chart, musical composi- tion, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz. : " Entered according to act of Congress, in the year , by A. B. , in the office of the Librarian of Congress, at Washington ;" or, at his option the word "Copy- right," together with the year the copyright was entered, and the name of the party by whom it was taken out ; thus : ' ' Copyright, 18—, by A. B." Sec. 2. That for recording and certifying any instrument of writ- ing for the assignment of a copyright, the Librarian of Congress shall receive from the persons to whom the service is rendered, one dollar ; and for every copy of an assignment, one dollar ; said fee to COPYRIGHT LAW OF THE UNITED STATES, II3 cover, in either case, a certificate of the record, under seal of the Librarian of Congress ; and all fees so received shall be paid into the Treasury of the United States. Sec. 3. That in the construction of this act, the words "engrav- ing,"' " cut" and " print " shall be applied only to pictorial illustra- tions or works connected with the fine arts, and no prints or labels designed to be used for any other article of manufacture shall be entered under the copyright law, but may be registered in the Patent Ofiice. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioper of Patents, to the party entering the same. Sec. 4. That all laws and parts of laws inconsistent with the fore- going provisions be and the same are hereby repealed. Sec. 5. That this act shall take effect on and after the first day of Augpist, eighteen hundred and seventy-four. Approved, June 18, 1874. Provisions of the Revised Statutes of the United States which, with Section 4970 {ante, p. 39), govern Jurisdiction in Copyright Cases, Sec. 629. The Circuit Courts shall have original jurisdiction as follows : First. Of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a. citizen of another State. ... ******* Ninth. Of all suits at law or in equity arising under the patent or copyright laws of the United States. Sec. 699. A vmt of error [to the Supreme Court of the United States] may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute : First. Any final judgment at law or final decree in equity of any Circuit Court, or of any District Court acting as a Circuit Court, or of the Supreme Court of the District of Columbia, or of any Terri- tory, in any case touching patent-rights or copyrights, 8 VII. THE HAWLEY BILL. Introduced into the Senate, January, 1885, by- Senator J. R. Hawley of Connecticut, but never reported from the Committee on Patents to which it was referred. Be it enacted, etc. I. The citizens of foreign states and countries, of which the laws, treaties, or conventions confer or shall hereafter confer upon citi- zens of the United States rights of copyright equal to those accorded to their own citizens, shall have in the United States rights of copy- right equal to those enjoyed by citizens of the United States. II. This act shall not apply to any book or other subject of copy- right published before the date hereof. III. The laws now in force in regard to copyright shall be appli- cable to the copyright hereby created, except so far as the said laws are hereinafter amended or repealed. IV. Section 4g7i of the Revised Statutes of the United States is hereby repealed. Section 4954 is amended by striking out the words "and a citizen pf the United States or resident therein.'' Section 4967 is amended by striking out the words " if such author or pro- prietor is a citizen of the United States or resident therein." V. The proclamation of the President of the United States that such equality of rights exists in any country shall be conclusive proof of such equality. VIII. INTERNATIONAL COPYRIGHT. Report of the Hon. W. E. Simonds, of Connecticut, from the House Committee on Patents, June lo, i8go. Mr. Simonds, from the Committee on Patents, submitted the following report (to accofnpany H. R. 1088 1): The Committee on Patents, to whom was referred the bill (H. R. 10254) " To amend title sixty, chap- ter three, of the Revised Statutes of the United States relating to copyright," respectfully report that they have had the same under consideration. They recommend that said bill be tabled and that the accompanying substitute bill be passed. In this connection they submit comments as follows : THE PROPOSITION OF THE BILL. The proposition of the bill is simply to permit foreigners to take American copyright on the same basis as American citizens, in three cases: first, when the nation of the foreigner permits copyright to American citizens on substantially the same basis as its own citizens ; second, when the nation of the foreigner gives to American citizens copyright priv- ileges similar to those provided for in this bill ; Il6 THE QUESTION OF COPYRIGHT. third, when the nation of the foreigner is a party to an international agreement providing for reciprocity in copyright, by the terms of which agreement the United States can become a party thereto at its pleasure. A subsidiary but important proposition of the bill is that all books copyrighted under the proposed act shall be printed from type set within the United States, or from plates made therefrom. The fol- lowing is from the testimony of J. L. Kennedy, given before the House Judiciary Committee, Jan- uary 30, 1 890, in behalf of the International Typo- graphical Union : Mr. Oates. Why do the printers favor this bill ? Mr. Kennedy. For several reasons. The first and principal reason is the selfish one. How rare is the human action that has not selfishness for its motive force ! Its effect as a law will be given to greatly stimulate book printing in the United States. A vast amount of printing that naturally belongs here (because it is executed principally for this market), and now done on the other side, will come home to us. Indeed, it has been conspicuously stated in the London Times that if this bill becomes a law the literary and book publishing centre of the English world will move westward from London and take up its abode in the city of New York. That would be a spectacle which every patriotic American might con- template with complacency and pride. The Englishman who writes books for the money he can get out of them, as well as the fame — and I think it fair to presume that the great majority of authors are actuated by both of those motives — will recognize that here is the richest market, and he will not think it a hardship to comply with the provisions of this proposed law in view of the substantial benefit it is to him, and the printers do not consider it a hardship to require of him that he shall leave upon our shores so much of his profits at least as will pay for his printing. The American author who goes abroad in search of a cheaper pub- lishing market, sending his shell-plates over here to be mounted and INTERNATIONAL COPYRIGHT. II 7 to have his presswork done, or else sending tlie printed sheets home to be bound here, thus evading the heavier duty on bound books, will also be compelled to patronize home industry for his mechanical work. In short, it is not difficult for printers to see that such a law will confer inestimable benefits upon their own and allied trades. THE TERM OF COPYRIGHT. Under the existing law of the United States copyright is granted for twenty-eight years, with the right of extension for fourteen more ; in all, forty-two years. The bill proposes no change in that respect. The term of copyright in other coun- tries is as follows : Mexico, in perpetuity. Guatemala, in perpetuity. Venezuela, in perpetuity. Colombia, author's life and eighty years after. Spain, author's life and eighty years after. Belgium, author's life and fifty years after. Ecuador, author's life and fifty years after. Norway, author's life and fifty years after. Peru, author's life and fifty years after. Russia, author's life and fifty years after. Tunis, author's life and fifty years after. Italy, author's life and forty years after ; to be eighty years in any event. (See later chapter in this volume.) France, author's life and fifty years after. Germany, author's life and thirty years after. Austria, author's life and thirty years after. Switzerland, author's life and thirty years after. Hayti, author's life, widow's life, children's lives, and twenty years after. Brazil, author's life and ten years after. Sweden, author's life and ten years after. Roumania, author's life and ten years after. Great Britain, author's lite and seven years after ; to be forty-two years in any event. Il8 THE QUESTION OF COPYRIGHT. Japan, author's life and five years after. South Africa, author's life ; fifty years in any event. Bolivia, author's life. Denmark, fifty years. Holland, fifty years. The verdict of the world declares for a longer term of copyright than that granted by the United States of America. {La ProprM^ Litt^raire et Ar- tistique, Paris, 1889.) LIBERALITY TO FOREIGNERS. Without reference to international agreements, every one of the twenty-six countries above named permits foreigners to take copyright on the same basis as its own citizens except Great Britain. That country permits foreigners to take copyright on the same basis as its own citizens, provided the for- eigner is at the time of publication anywhere within the British dominions, which expression includes British colonies and possessions of every sort. An alien friend temporarily residing in the British dominions, and consequently owing a temporary allegiance,' is entitled to copyright in any work which he publishes here whilst so residing, however short his period of residence may be. (Short's Law of Copyright, p. 12.) By Acts of Parliament the queen is empowered to provide for copyright of an international character as to any nation which will reciprocate. From con- ditions herein pointed out it is clear that the queen is thus empowered solely with reference to hoped- for relations with the United States of America. The United States alone refuses copyright to for- eigners, and, alone among the nations of the earth, INTERNATIONAL COPYRIGHT. 110 refuses reciprocity in copyright. (La Preprints Littdraire et Artistique, before cited.) INTERNATIONAL COPYRIGHT AGREEMENTS. First and last there have been signed about a hundred international agreements providing for rec- iprocity in copyright, the general nature of which is illustrated by the following quotation of Article II. of the agreement made at the Berne International Copyright Convention of September 9, 1886: Authors within the jurisdiction of one of the countries of this Union, or their heirs, shall enjoy in the other countries for their works, whether they are or are not published in one of these coun- tries, the rights which the respective laws of these countries now accord, or shall subsequently accord, to their own countrymen. The international copyright agreements of France are: With Holland, July 25, 1840; Portugal, April 12, 1851; Great Britain, November 3, 1851 ; Bel- gium, August 22, 1852 ; Spain, November 15, 1853; Luxemburg, July 6, 1856 ; Russia, April 6, 1861 ; Italy, June 29, 1862; Prussia, August 2, 1862; Switzerland, June 30, 1864 ; Hanseatic Cities, March 4, 1865 ; Bavaria, March 24, 1865 ; Frank- fort-6n-the-Main, April 18, 1865 ; Wurtemburg, April 24, 1865 ; Baden, May 12, 1865 ; Saxony, May 26, 1865 ; Mecklenburg-Schwerin, June 9, 1865 ; Hesse, June 14, 1865 ; Hanover, July 19, 1865; Monaco, November 9, 1865; Luxemburg, December 16, 1865; Great Britain, August 11, 1865; Salvador, June 2, 1880; German Empire, April 19, 1883; Sweden and Norway, February 15, 1884; Italy, July 9, 1884; Portugal, July 11, 1886; I20 THE QUESTION OF COPYRIGHT. Mexico, November 27, 1886 ; Bolivia, September 8, 1887. The following named countries have signed inter- national copyright agreements in number as fol- lows : Gei-man Empire, six (the German states had signed many prior to 1871, when the empire was created) ; Belgium, six ; Bolivia, six ; Ecuador, one ; Spain, seven ; Great Britain, nineteen ; Italy, ten ; Luxemburg, two ; Mexico, one ; Monaco, one ; Holland, three ; Portugal, four ; Russia, two ; Sal- vador, one ; Sweden and Norway, two ; Switzer- land, five. The agreement made at the Berne Convention of September 9, 1886, was signed by Great Britain, France, Germany, Spain, Holland, Italy, Switzer- land, Hayti, Liberia, and Tunis. January 11, 1889, the following seven South American Governments signed the draft of the agreement made at the Montevideo International Copyright Convention : the Argentine Repubhc, Bolivia, Brazil, Chili, Para- guay, Peru, and Uruguay. The United States of America, standing substantially alone in that regard among the civilized nations of the earth, has never entered into an international agreement for the pro- tection of copyright. We were represented at the Berne Convention of 1886 by the Hon. Boyd Winchester, who reported strongly in favor of the United States giving its adhesion to the Berne agreement ; but our Govern- ment has refrained from doing so, for the express reason that Congress is dealing with the subject from time to time. The transactions in this regard INTERNATIONAL COPYRIGHT. 121 are given in Executive Document No. 354 (Forty- ninth Congress, first session), and Executive Docu- ment No. 37 (Forty-ninth Congress, second session). The recent International American Congress, held in the city of Washington, reported the following resolution : Whereas the International American Conference is of the opinion that the treaties on literary and artistic property, on patents and on trade-marks, celebrated by the South American Congress of Monte- video, fully guaranty and protect the rights of property which are the subject of the provisions therein contained : Resolved, That the conference recommend, both to those Govern- ments of America which accept the proposition of holding the Con- gress, but could not participate in its deliberations, and to those not invited thereto but who are represented in this conference, that they give their adhesion to the said treaties. Jos£ S. Decoud, Delegate from Paraguay. Andrew Carnegie, Delegate from United States. Climaco Calder6n, Delegate from Colombia. The United States of America must give in its adhesion to international copyright or stand as the literary Ishmael of the civilized world. THE author's natural RIGHT. The passage of the proposed act is demanded by so-called practical reasons, referred to hereinafter, which do not deal specially with the right and wrong of the matter, but if no such " practical " rea- sons existed it is a sufficient reason for its passage that an author has a natural exclusive right to the thing having a value in exchange which he produces 122 THE QUESTION OF COPYRIGHT. by the labor of his brain and hand. No one denies and every one admits that all men have certain nat- ural rights which exist independently of all written statutes. The common law of England — inherited and adopted to a great extent by the several American States — is built upon and developed out of the nat- ural rights of men. Our Declaration of Independ- ence names some of these natural rights, calling them self-evident, as the basis and foundation of our right to national existence, to wit, life, liberty, and the pursuit of happiness. An equally self-evident natural right is the right of property, the right to exclusively possess what- ever in the nature of property a man rightfully acquires. Civilized and uncivilized people alike recognize this right. No form of society, no matter how rude, no matter how cultivated, is possible with- out the recognition of this right of property. What- ever has value in exchange is, when possessed, property. The visible expression of an author's mental conception, written or printed, has value in exchange, and is therefore property in the full sense of the word. No better title to an article of prop- erty can be imagined than that which is rooted in the creation of the article ; creation gives the strongest possible title. The author holds his prop- erty by this first, best, and highest of all titles. The principle is as old as the property itself, that what a man cre- ates by his own labor, out of his own materials, is his own to enjoy to the exclusion of all others. (Drone on Copyright, p. 4.) The monopoly of authors and inventors rests on the general senti- INTERNATIONAL COPYRIGHT. 1 23 ment underlying all civilized law, that a man should be protected in the enjoyment of the fruits of his own labor. (Copyright article, Encyclopadia Britannica.) The right of an author to the production of his mind is ac- knowledged everywhere. It is a prevailing feeling, and none can doubt it, that a man's book is his book — his property. (Daniel Webster, 6 Peters' Reports, 653.) The author cannot enjoy the value in exchange of his property if others reproduce the visible ex- pression of his mental conception without his per- mission. To do so is to appropriate his valuable thing without giving value in exchange. The au- thor's right is incorporeal, but it is not a small thing because incorporeal. Milton's Paradise Lost, Haw- thorne's Scarlet Letter, and Shakespeare's Hamlet suffice for evidence on that point. It is not a unique kind of property because incorporeal. The major part of the wealth of the world is incorporeal. H. D. Macleod, in his article on copyright in the Political Encyclopedia, says: "it is probable that nineteen-twentieths of existing wealth is in this form ; " the franchises of ferries, railways, telegraph and telephone companies, patents, trade-marks, good-will, shares in incorporated companies, and annuities of all sorts are familiar instances of incor- poreal property. The courts of the several States, as well as the United States Supreme Court, admit the author's natural exclusive right to his intellectual property, in that they are unanimous in holding that the au- thor has a natural, exclusive, and perpetual right in the visible expression of his mental conception so long as it is expressed in written words. 124 THE QUESTION OF COPYRIGHT. Two principles are settled in English and American jurisprudence: At common law the owner of an unpublished literary composition has an absolute property therein. (Drone on Copyright, p. loi.) When a man, before uninformed in the matter, comes to understand that the author has an ad- mitted natural and exclusive right to the visible expression of his mental conception when that con- ception is expressed in written words, his common sense forbids him to entertain the notion that he loses such right by expressing the conception in printed words. ' The admission of the right as to written words settles the question. It is sometimes attempted to stigmatize copy- right as monopoly, and writers of loose and careless habit sometimes speak of copyright as monopoly. It is no more monopoly than is the ordinary owner- ship of a horse or a piece of land. Blackstone says that a monopoly is — A license or privilege . . . whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. The law dictionaries define it in the same way. , A monopoly takes away from the public the enjoy- ment of something which the public before pos- sessed. Neither copyright nor patent does this, for , neither can be applied to anything which is not new ;■ neither can be applied to anything which the public before possessed. The author and inventor must produce something new in order to be entitled to copyright or patent. Notwithstanding this allusion to patents, the mistake should not be made of sup- posing that patents and copyrights stand on the INTERNATIONAL COPYRIGHT. 125 same basis as to natural exclusive right, for they do not ; the difference between them, in this regard, is radical. A patent covers the idea or principle of an inven- tion ; copyright does not cover the author's idea, but only the language in which he clothes the idea ; hence arises a radical difference which it is not now necessary to discuss. THB COMMON-LAW RIGHT. As has been already remarked, the common law of England, inherited and adopted, to a great ex- tent, by the several American States, is built upon and developed out of the natural rights of man. The common law of England always recognized the natural, exclusive right of an author to the written and printed expression of his mental con- ception from the time when printing was introduced into England by Caxton, in 1474. From 1474 to 1 7 10 the common-law right was more or less inter- fered with at times by Crown grants in the nature of genuine monopoly, including decrees of the Star Chamber. April 10, 1710, the Statute of Anne, so-called, was passed. It gave authors of works then existing the sole right of printing the same for twenty-one years and no longer. It gave to authors of works not then printed, and to their assigns, the sole right for fourteen years, and if the author was then alive he had the right to a prolongation for fourteen years more. In the copyright article of the Political En- cyclopedia, Macleod correctly says : 126 THE QUESTION OF COPYRIGHT. It is quite impossible to read this act without seeing that it dis- tinctly recognizes copyright as existing already, and independently of the act. All they did was to enact certain statutory penalties for its infringement. But that, by a well-known rule of law, in no way affected proceedings at common law. We have seen that the courts of law never raised the slightest doubt as to the existence of copy- right at common law. We shall now see how the court of chancery regarded it. As the act gave twenty-one years for old copies from April 10, 1710, no question on copyright at common law could arise before 1731. In 1735, Sir Joseph Jekyll granted an injunction in the case of Eyre vs. Walker, to restrain the defendant from printing The Whole Duty of Man, the first assignment of which had been made in December, 1657, being seventy-eight years before. In the same year. Lord Talbot, in the case of Matte vs. Falkner, granted an injunction restraining the defendant from printing Nelson's Fes- tivals and Fasts, printed in 1703, during the life of the author, who died in 1714. In 1739 Lord Hardwicke, in the case of Tonson and another vs. Walker, otherwise Stanton, granted an injunction restraining the defendant from printing Milton's Paradise Lost, the copyright of which was assigned in 1667, or seventy-two years be- fore. In 1752 Lord Hardwicke, in the case of Tonson vs. Walker and Merchant, granted an injunction, restraining the defendants from printing Milton's Paradise or Life or Notes. All this time there had never been any scllemn decision by the King's Bench as to the existence of copyright at common law, or as to how it was affected by the statute of Anne. But the court of chancery never granted an injunction unless the legal right was clear and undisputed. If there had been any doubt about it they would have sent it to be argued in a court of common law. In 1769 the question came before the Court of King's Bench (the court of last resort, the House of Lords excepted) in the case of Millar vs. Taylor (4 Burr., 2303). It was held — three judges in the afifirmative to one in the negative — that the com- mon-law right existed. In 1774 the question again came before the Court of King's Bench in the case of Beckett vs. Donaldson (4 Burr., 2408), and INTERNATIONAL COPYRIGHT. 12/ it was again decreed that the common-law right existed. The case was immediately appealed to the House of Lords and there the eleven judges gave their opinions as follows on the following points : (1) Whether at common law an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent ? On this question there were eight judges in the affirmative and three in the negative. (2) If the author had such right originally, did the law take it away upon his printing and publishing such book or literary com- position, and might any person afterward reprint and sell for his own benefit such book or literary composition against the will of the author ? This question was answered in the affirmative by four judges and in the negative by seven. (3) If such action would have lain at common law is it taken away by the statute of 8 Anne, and is an author by the said statute pre- cluded from every remedy, except on the foundation of the said statute and on the terms of the conditions prescribed thereby ? Six of the judges to five decided that the remedy must be under the statute. (4) Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity by the common law ? Which question was decided in favor of the author by seven judges to four. (5) Whether this right is any way impeached, restrained, or taken away by the statute of 8 Anne ? Six to five judges decided that the right is taken away by the statute. This decision is squarely to the effect that the common-law right was in full force up to the pas- sage of the Statute of Anne, April_ 10, 1710. There was a clear preponderance of judges to this effect, but it was also decided — six judges to five — that the Statute of Anne took away the common-law right. 128 THE QUESTION OF COPYRIGHT. Lord Mansfield, as one of the judges of the Court of King's Bench, had decided that the Statute of Anne had not taken away the common-law right ; as a peer, he refrained from voting through motives of delicacy ; had he voted in the House of Lords the decision of the Court of King's Bench that the Statute of Anne had not taken away the common- law right would have stood unreversed. That the common law of England hsd always recognized the author's natural right was fully established by these decisions. To show that the common law gave copyright is to establish the natural right, for the common law is built upon and developed out of natural right. COPYRIGHT IN THE CONSTITUTION. The clause of the Constitution of the United States of America which authorizes the grant of copyright is to be found in Article L, -section 8 : The Congress shall have power ... to promote the progress of science and the useful arts by securing, for limited times, to au- thors and inventors, the exclusive rights to their respective writings and discoveries ; . . . also to make all laws which shall be neces- sary and proper for carrying into execution the foregoing powers. The object stated in the grant is " to promote the progress of science and the useful arts." The state- ment of the object has nothing to do with the ques- tion whether the Constitution recognizes the au- thor's natural rights. The use of the word secure instead of give or grant is some recognition of the natural right. This Constitution was formed in INTERNATIONAL COPYRIGHT. 1 29 1787, just thirteen years after the House of Lords had expressly recognized the natural right. The well-informed men who framed the Constitu- tion could not have been ignorant of that decision of the House of Lords, for that was a famous de- cision of widespread interest and notoriety. They were framing a grant of delegated "^ov^^ts to the Gen- eral Government. They knew that such of the States as fully adopted the common law adopted with it the recognition of the author's natural right. It seemed to them expedient to give to the General Govern- ment the supreme power in the premises " for limited times." They did not intend to affirm or deny the natural right. The natural inference from the language used, in the light of the surrounding facts, is that they knew of the natural right, the common-law right ; that they did not choose to meddle with it, but did deem it expedient to give the General Government su- preme power in the premises " for limited times." Possibly they might have thought that a natural right necessarily means a perpetual right ; and the United States Supreme Court in dealing with the question, as referred to hereinafter, may have been troubled by the same idea. Natural right does not necessarily mean perpetual right. In all forms of society, all kinds of property are held under such conditions and limitations as society deems reason- able. Under the right of eminent domain, governments take private property for public use upon suit- able remuneration, when public necessity and con- 9 I30 THE QUESTION OF COPYRIGHT. venience demand it. In some cases private prop- erty is taken for public use without compensation, notably when a man's building is torn down to pre- vent the spread of a conflagration. The disposition of property by last will and testament is regulated by law. In England the lands cannot be alienated from the eldest son. In not to exceed a term of one hundred years the entire value of almost every specific piece of property is taken from the owner by the public in the form of taxes, in return for the protection and security which society gives. It is entirely reasonable that the law should bring a copyright to an end at the expiration of a term of years — this, especially, in view of the fact that it is not usual to tax copyrights from year to year. It cannot be reasonably maintained that the premise of natural right necessarily leads to the conclusion of perpetuity. COMMON-LAW RIGHT IN THE UNITED STATES. It is universally conceded that wherever the com- mon law exists in the several American States, it is derived from and is identical with the English com- mon law. It has been shown, beyond question, that English common law recognizes the author's natural right. It follows as a necessary conclusion that the American common law, wherever it exists, gives copyright, and recognizes the author's natural right. Connecticut passed a copyright law in January, 1783 ; Massachusetts, in March, 1783 ; Virginia, in 1785, and New York, in 1786. They all recognize INTERNATIONAL COPYRIGHT. 131 the pre-existing common-law right, the exclusive natural right. It has been supposed that the United States Supreme Court decided that the common law does not give copyright in the United States, in the case of Wheeler vs. Peters (8 Peters Reports, S91), decided in A.D. 1834. Such is not the fact. The opinion in that case decided only two points connected with this question, to wit : (i) that the United States, as a nation, has no common law, and (2) that as to Pennsylvania, where the controversy in question arose, there was no proof that the common law had been adopted. This is what the United States Supreme Court said in that case : It is clear there can be no common law of the United States. The Federal Government is composed of twenty-four sovereign and independent States ; each of which may have its local usages, cus- toms, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption. It is insisted that our ancestors, when they migrated to this country, brought with them the English common law as a part of their heritage. That this was the case to a limited extent is admitted. No one will contend that the common law, as it existed in England, has ever been in force in all its provisions in any State in this Union. It was adopted so far only as its principles were suited to the condition of the colonies ; and from this circumstance we see what is common law in one State is not so considered in another. The judicial de- cisions, the usages and customs of the respective States, must deter- mine how far the common law has been introduced and sanctioned in each. In the argument it was insisted that no presumption could be drawn against the existence of the common law as to copyrights in 132 THE QUESTION OF COPYRIGHT. Pennsylvania, from the fact of its never having been asserted until the commencement of this suit. It may be true, in general, that the failure to assert any particular right may afford no evidence of the non-existence of such right. But the present case may well form an exception to this rule. If the common law, in all its provisions, has not been introduced into Pennsylvania, to what extent has it been adopted ? Must not this court have some evidence on this subject ? If no right, such as is set up by the complainants, has heretofore been asserted, no cus- tom or usage established, no judicial decision been given, can the conclusion be justified that, by the common law of Pennsylvania, an author has a perpetual property in the copyright of his works ? (8 Peters, 658.) Mr. Drone, in his book on copyright, says all that is necessary to be said about this remarkable decis- ion wherein the dissenting opinion has easily the best of the argument : The judgment of the court, as has been seen, was based on two grounds : (l) That the common law of England did not prevail in the United States. (2) That in England it had been decided that the common-law property in published works had been taken away by statute. The first position rested on a foundation of sand, which has since been swept away. " The whole structure of our present jurisdiction," said Mr. Justice Thompson in his dissenting opinion, "stands upon the original foundation of the common law." The doctrine is now well settled in this country that a complete property in unpublished works is secured by the common law. This was admitted by the Supreme Court in Wheaton vs. Peters. It has since been repeatedly affirmed by the same tribunal, by the circuit court of the United States, and by every State court in which the question has been raised. If the common law thus prevails in the United States with reference to unpublished productions, there is no principle, independently of the statute, by which it can be held not to prevail in the case of published works. {Drone on Copyright, 47.) In right reason and sound logic the common law INTERNATIONAL COPYRIGHT. 133 does exist in the United States, and that existence is conclusive of the existence of the natural right. THE WRONG TO AMERICAN AUTHORS. The Constitution authorizes copyrights in order " to promote the progress of science and the useful arts," primarily within the United States. Our present procedure is a hinderance to the " progress of science and the useful arts" in the United States in more ways than one. One way in which our present practice hinders the progress of science and the useful arts within our borders is by the repression of the development of American intellectual life, by the repression of the home production of literary works through sub- jecting native authors to a kind of competition to which no other class of American workers is sub- jected, a kind of competition which is ruinous and destructive. American authors are subjected to untrammeled competition with English authors who do not re- ceive a farthing for their labor. All stories compete with all other stories so far as the demand of the story-reading public is concerned ; and the story- reading public of America comprises many millions of people. An American publisher can, within the pale of the law, appropriate and publish an English story without remuneration to the English writer. It is well and widely known that some American publishers do this on a large scale. Since such American publishers pay nothing to the English authors whose stories they appropriate and pub- 134 THE QUESTION OF COPYRIGHT. lish, other American publishers cannot afford to pay American authors for writing stories except in those comparatively rare cases where the American author has already acquired an established reputation. The new American author has no chance worthy of the name for getting a start, and the sale of the works of American authors of established reputation is to a degree prevented by this competition, in which everything is against the American author. It is not to the point to refer to persons engaged in other kinds of business, the profession of law for instance, and to say that competition exists there as everywhere else, that the bright men succeed and the dullards fail. The parallel is wholly wanting. If American lawyers had to compete not only with each other, but also with a numerous class of lawyers receiving nothing for their labor, the parallel would be complete, and the American lawyer would need no extended argument to convince him of the un- fairness of the arrangement. The American people in general have no adequate idea of the extent of this mischief. Mr. Henry Holt, a well-known New York city publisher, said upon this point before the Senate Committee on Patents in 1886: The effect of this state of affairs on the opportunities of Ameri- can authors to get into print or stay in print is very disastrous. I have unused manuscripts in my safe and have lately sent back manu- scripts which ought to have been published, but I was afraid to undertake the publication ; the market will not support them. I lately published, I think, the most important American work of fic- tion with a single exception that I ever published. The critics re- ceived it with praise. I had to write the author the other day that it had been a financial failure. She is a poor girl of great talent INTERNATIONAL COPYRIGHT. 1 35 Her old parents are living, and she has to support them and an old family servant. At the same hearing Mr. Dana Estes, of the well- known Boston firm of Estes, Lauriat & Co., said: It has been said by some gentlemen that the flood of British reprints has a discouraging effect upon American authorship. I will add my mite to that statement. For two years past, though I belong to a publishing house that emits nearly $1,000,000 virorth of books per year, I have absolutely refused to entertain the idea of publishing an American manuscript. I have returned many scores, if not hun- dreds, of manuscripts of American authors, unopened even, simply from the fact that it is impossible to make the books of most American authors pay, unless they are first published and acquire recognition through the columns of the magazines. Were it not for that one saving opportunity of the great American magazines which are now the leading ones of the world and have an international repu- tation and circulation, American authorship would be at a still lower ebb than it is at present. Take, for instance, an author of eminent eenius who has just arisen. I refer to Charles Egbert Craddock — Miss Murfree. Had her manuscript been offered to any one of half a dozen American publishers it is probable it would have been refused. She got an entering wedge by having her articles published in a magazine and sprang into a world-wide reputation at once. How many of these " mute inglorious Miltons " there are in the manu- scripts, tons of manuscripts, scattered about the country, I do not know, but I venture to say there are a good many. Sir Henry Maine said of the American people in his book or^ Popular Government that their " neglect to exercise their power for the advantage of foreign writers has condemned the whole American com- munity to a literary servitude unp?iralleled in the history of thought." The mischief that is being wrought upon Amer- ican intellectual life of the literary sort, in this man- 136 THE QUESTION OF COPYRIGHT. ner, is very great. It is none the less real because it cannot be accurately stated in dollars and cents. ENGLISH MARKET FOR AMERICAN AUTHORS. American authors of established reputation would be largely benefited by any sort of international copyright with England. English publishers now appropriate the stories of American writers as American publishers appropriate the stories of English authors. Reciprocity in copyright would give the English market to American authors. VITIATED EDUCATION OF AMERICANS. The proposition that the story-reading public of America comprises many millions of people, and that the major part are youth, is easy of acceptance. That they are having offered to them an exhaustless stream of English stories written by authors of no special repute, is equally plain. That these stories deal with kings and queens, orders of nobility, an established church, a standing army, monarchical institutions generally, and with English manners, scenes, customs, and social usages is almost a matter of necessity. Probably a large portion of these stories deal with some tale of seduction. The good stories of England were long since ex- hausted by the American reprinters, and as a con- sequence we are having poured out upon us an un- stinted flood of printed stuff, often nasty, still oftener weak and silly, and always foreign in tone, senti- ment, and description. In the aggregate these INTERNATIONAL COPYRIGHT. 137 Stories constitute a powerful means of undesirable education, as well as of vitiation of American taste ; and this force is exerted more largely than other- wise upon minds and morals which are in the plastic and formative stage. It is entirely true that many of the cheap American reprints are not stories and that many of the reprinted English stories are good stories, but these are an exception to the general rule, and such exceptions constitute a small per- centage of the whole ; the healthy part bears about the same ratio to the unhealthy that the nutritive element in a glass of strong beer bears to the baleful part. Mr. Henry Holt, the New York publisher already mentioned, said upon this point before the Senate committee in 1886: It is a vastly important subject, this subject of the prosperity of American authors. It is a subject that reaches to the foundation of our civilization. It is the question whether we are to continue to have an American literature — for, as you all know, American litera- ture is languishing even now — the question whether outside of the daily and periodical press we are to derive our ways of thinking, our ideal of life and politics, from alien, unsympathetic sources. But this is not the whole question. It is rapidly becoming a question whether, with a few rare exceptions, we are going to have any seri- ous books at all. Thought, morals, and education are the secret springs of natural life. We are allowing them to be contaminated at their sources. BARRING OUT GOOD LITERATURE. Another of the ways in which our present prac- tice hinders the " progress of science and the useful 138 THE QUESTION OF COPYRIGHT. arts" in the United States is by barring out the really useful literature of England, a thoroughly healthy mental and moral pabulum. As regards works on law, theology, medicine, governmental sci- ence, political economy, physical science, art, biog- raphy, history, travel, language, education, and the like, England is probably more prolific in eminently useful books, in proportion to her population, than any other country in the world. Unlike many of her stories, these have no special tone which is for- eign to American institutions. It would be a great practical blessing for the American people if the great mass of these publications were promptly re- produced in America. They are, however, precisely the kind of books which will never be reprinted here, except to a very small extent, without the protec- tion of copyright. Almost every such work, separately considered, appeals to a limited class only. The republication of one of them involves, as a rule, a very consider- able outlay. If reprinted at all, it must be in the shape of books well printed on good paper, well bound, and fit for preservation in a library. No publisher dare undertake the necessary outlay — the publication of a book always being an experiment, financially — unless he is sure he can have the whole limited field to himself. One effect which may con- fidently be expected from the passage of such a bill as is now proposed is the republication here of the great volume of English books of the class now under discussion which are now sealed books to the great mass of the American people. INTERNATIONAL COPYRIGHT. 1 39 CHEAPENING THE PRICE OF BOOKS. Still another way in which our present practice hinders the " progress of science and the useful arts" in the United States is by preventing the cheapening of the prices of good and desirable books. By " good and desirable books " is meant all manner of books, except the very cheap paper covered or no-covered reprints of English stories. International copyright between Great Britain and the United States will open the American book market to English authors and English publishers. This can mean nothing less than the addition of an enormous mass of competition to the existing com- petition in American book publishing. This added competition must, in the nature of things, cheapen the price of all books, those of American origin and those of English origin alike. It is the sure effect of competition to reduce prices. It will never be possible to take a backward step in international copyright after the American public once feels this effect of such a law as is now proposed. The ordinary mode of attempting to show that we get books cheaper because of the absence of in- ternational copyright is to exhibit a list of English books published at a high price and a parallel list of cheap American reprints of the same. It is quite as easy to exhibit a list of English books published at a high price and a parallel list of cheap English reprints of the same. It is also quite as easy to exhibit a list of American books published at a I40 THE QUESTION OF COPYRIGHT. comparatively high price and a parallel list of cheap American reprints of the same. Many English books are first published at a high price to be bought almost solely by the English cir- culating libraries, and when the freshness is worn off excellent shilling editions of the same appear at the English railway book-stalls. American books which prove to be a success are likewise reproduced subsequently in the cheapest form consistent with good paper and good print. The exhibition of a list of English books published at a high price and a parallel list of cheap American reprints of the same, for the purpose of showing that the absence of international copyright gives us cheap books, if done with full knowledge is an attempt at deceit. That " the selling price of a book depends, not on the copyright, but on the extent of the market that can be assured for it," is a trade maxim settled beyond dispute. A very desirable and certain re- sult of international copyright is stated as follows, in the words of George Haven Putnam, the well- known American publisher : An international copyright will render practicable a large number of international undertakings which cannot be ventured upon with- out the assured control of several markets. The^ volumes for these international series will be secured from the leading writers of the world — American, English, and Continental — and the compensation paid to these writers, together with the cost of the production of illustrations, maps, tables, etc., will be divided among the several editions. The lower the proportion of this first outlay to be charged to the American edition, the lower the price at which this can be furnished ; and as the publisher secures the most satisfactory returns from large sales to a wider circle, the lower the price at which it will be furnished. It would, perhaps, not be quite correct to say that INTERNATIONAL COPYRIGHT. I41 these international series would be cheaper than at present, for there are, as yet, but few examples of them, but it is the case that, by means of such series (only adequately possible under international copyright), American readers will secure the best literature of con- temporary writers at far lower prices than can ever otherwise be practicable. France and Germany are thoroughly under the operation of international copyright, and books are much cheaper there than in the United States ; the fact is not accounted for by the difference in labor cost, for the one occupation of the printer is pre- cisely the occupation wherein labor cost is most nearly the same here and abroad. This one inevitable result of international copy- right, the cheapening of the great mass of all real books, easily outweighs the sole objection which it is possible to maintain against international copy- right, to wit, that it will increase by a few cents the prices of the cheapest reprints of English stories. THE CHEAP REPRINTS. It is admitted that the proposed act, or any other of a similar nature, will raise the price of the very cheap reprints of English stories yet to be written a few cents apiece. A pamphlet of that sort now costing twenty cents will then cost twenty-five cents. Of the additional price, two cents will go to the author, and three cents will go into better paper, better print, and better binding. For the five cents of increased cost, an American story will be furnished oftener than an English story; an American author will get pay for his labor, and the 142 THE QUESTION OF COPYRIGHT. reader will get a book that is one hundred per cent, better than the old one in paper, print, and bind- ing. E. P. Roe's Barriers Burned Away, Amelia E. Barr's Bow of Orange Ribbon, Miss Green's The Leavenworth Case, and Mrs. Prentice's Stepping Heavenward, all American copyrighted books, well printed on good paper, well bound in paper covers, and selling at twenty-five cents apiece, are fair sam- ples of what will take place along the whole line of American fiction if this bill becomes a law. This law will have no effect on the literature of the past. PATENT INSIDES. It is sometimes urged that country newspapers will, if such a bill as this becomes a law, be cut off from culling from foreign newspapers and periodi- cals. Such an effect is not possible ; it is not prac- tically possible to copyright foreign newspapers and periodicals under the proposed law ; it requires that the two copies to be deposited with the Librarian of Congress on or before the day of publication shall be printed from type set in this country, or from plates made therefrom ; that provision practi- cally cuts off foreign newspapers and periodicals from American copyright, and our newspapers will remain free to cull from them at pleasure. ADVOCATES OF INTERNATIONAL COPYRIGHT. In 1837 a Senate committee composed of Clay, Webster, Buchanan, Preston, and Ewing, of Ohio, INTERNATIONAL COPYRIGHT. 143 made a report upon international copyright contain- ing the following language : That authors and inventors have, according to the practice among civilized nations, COPYRIGHT. the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails, and such weekly lists, as they are issued, shall be furnished to all parties desiring them, at a sum- not exceeding five dollars per annum ; and the Secretary and the Postmaster-General are hereby empowered and required to m-ake and enforce such rules and regulations as shall prevent the importa- tion into the United States, except upon the conditions above specified, of all articles prohibited by this act." Sec. 5. That section forty-nine hundred and fifty-nine of the Revised Statutes be, and the same is hereby, amended so as to read as follows : ' ' Sec. 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail, addressed to the Librarian of Congress, at Washington, District of Columbia,' a copy of every subsequent edi- tion wherein any substantial changes shall be made : Provided, how- ever. That the alterations, revisions, and additions m-ade to books by foreign authors, heretofore published, of which new editions shall appear subsequently to the taking effect of this act, shall be held and deemed capable of being copyrighted as above provided for in this act, unless they form a part of the series in course of publication at the time this act shall take effect." Sec. 6. That section forty-nine hundred and sixty-three of the Re- vised Statutes be, and the same is hereby, amended so as to read as follows : " Sec. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic, or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copy- right, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States." Sec. 7. That section forty-nine hundred and sixty-four of the Revised Statutes be, and the same is hereby, amended so as to read as follows : "Sec. 4964. Every person, who after the recording of the title ' Omits : " within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and " THE ACT OF MARCH, 1891. 173 of any book and the depositing of two copies of such book, as pro- vided by this act, shall, contrary to the provisions of this act, within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, dramatize, translate, or import, or knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction." Sec. 8. That section forty-nine hundred and sixty-five of the Revised Statutes be, and the same is hereby, so amended as to read as follows '■ " Sec. 4965. If any person, after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engrav- ing, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be per- fected and executed as a work of the fine arts, as provided by this act, shall within the term limited, contrary to the provisions of this act, and without the consent of the proprietor of the copyright first ob- tained in writing, signed in presence of two or more witnesses, en- grave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his pos- session, or by him sold or exposed for sale ; one-half there- of to the proprietor and the other half to the use of the United States." Sec. g. That section forty-nine hundred and sixty-seven of the Revised Statutes be, and the same is hereby, amended so as to read as follows : " Sec. 4967. Every person who shall print or publish any manu- script whatever without the consent of the author or proprietor first 174 THE QUESTION OF COPYRIGHT. obtained,' shall be liable to the author or proprietor for all damages occasioned by such injury." Sec. 10. That section forty-nine hundred and seventy-one of the Revised Statutes be, and the same is hereby, repealed.^ Sec. II. That for the purpose of this act each volume of a book in two or more volumes, when such volumes are publisJied separately and the first one shall not have been issued before this act shall take effect, and each number of a periodical shall be considered an inde- pendent publication, subject to the form of copyrighting as above. Sec. 12. That this act shall go into effect on the first day of July, anno Domini eighteen hundred and ninety-one. Sec. 13. Tliat this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens ; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from, time to time as the purposes of this act may require. The following are the sections of the Tariff act bearing on the bill ; 512. Books, engravings, photographs, bound or unbound, etch- ings, maps, and charts, which shall have been printed and bound or manufactured more than twenty years at the date of the importation. 513. Books and pamphlets printed exclusively in languages other than English ; also books and mnsic in raised print, used exclusively by the blind. 514. Books, engravings, photographs, etchings, bound or un- ' Omits : "if such author or proprietor is a citizen of the United States, or resident therein," ' Sec. 4971 is as follows : " Nothing in this chapter shall be con- strued to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed or made by any person not a citizen of the United States nor resident therein." THE ACT OF MARCH, 1 89 1. 1 75 bound, maps and charts imported by authority or for the use of the United States, or for the use of the Library of Congress. 515. Books, maps, lithographic prints and charts especially im- ported, not more than two copies in any one invoice in good faith, for the use of any society incorporated for educational, philosophical, literary, or religious purposes, or for the encouragement of the fine arts, or for the use or by order of any college, academy, school, or seminary of learning in the United States, subject to such regulations as the Secretary of the Treasury shall prescribe. 516. Books, or libraries, or parts of libraries and other household efiEects of persons or families from foreign countries, if actually used by them not less than one year, and not intended for any other per- son or persons, nor for sale. (In the text as above given, the changes from the existing law are printed in italics, and the omissions are specified in the foot-notes.) Note. — Section 4953 of the Revised Statutes, which prescribes twenty-eight years as the first term of copyright, being left unchanged, is not given in the present act. For its wording, see text of the Act of 1870, p. 108. X. ANALYSIS OF THE PROVISIONS OF THE COPYRIGHT LAW OF 1891. The purport of the Chace-Breckinridge-Adams- Simonds-Platt Copyright Act may be briefly sum- marized as follows : A . — Works of Literature. 1. Copyright is granted to authors, whether res- ident or non-resident, for a term of twenty-eight years. A further term of fourteen years (making forty-two years in all) is granted to the author if at the expiration of the first term he is still living, or to his widow or children if he be dead. Unless the author survive the first term or leave widow or children, the copyright is limited to twenty-eight years. 2. It is made a condition of such copyright for all authors, whether resident or non-resident, that all the editions of the works so copyrighted must be entirely manufactured within the United States ; the term including the setting of the type, as well as the printing and binding of the books. This provision was instituted in the new act at the instance of the Typographical Unions, and was in- sisted upon by them as essential. The Unions were ANALYSIS OF THE COPYRIGHT LAW OF 189I. \^^ under the apprehension that if international copy- right should be established without such condition of American manufacture, a large portion of the book manufacturing now done in this country would be transferred across the Atlantic, to the injury of American type-setters and printers, and of the other trades employed in the making of books. 3. For a non-resident author, the further condi- tion is attached to his American copyright that the country of which he is a citizen shall concede to American authors copyright privileges substantially equal to those conceded by such foreign state to its own authors. 4. It is also made a condition (applying to both resident and non-resident authors) that the book securing American copyright shall be published in the United States not later than the date of its pub- lication in any other country. Under the British act now in force, the works of British authors must, in order to preserve their British copyright, be pub- lished in Great Britain not later than the date of their publication in any other country. It will, therefore, be necessary for English authors to make arrangements with their English and American pub- lishers for a simultaneous date of publication for both sides of the Atlantic. With the present facilities for the manifolding and typewriting of manuscripts, for the transmit- ting across the Atlantic in a week's time advance proofs or advance sheets, and for making final arrangements by cable, there need be, for the great majority of books likely to be reprinted, no material 178 THE QUESTION OF COPYRIGHT. difficulties in the way of securing this simultaneous publication. The provision was believed by many to be an essential part of the condition that all editions of books securing an American copyright must be manufactured in this country. It was argued that, if a term of twelve months or of six months were to be allowed to a foreign author within which to complete arrangements for his American editions, the importation of the foreign editions during such term must be either prohibited or permitted. In the former case, American readers might, for an indefinite period, be prevented from securing any copies at all of new English books, a delay which would certainly bring about popular indignation. In the second case, the American market could be to some extent supplied with Eng- lish editions before any American editions were in readiness, and by the time the English author was ready to sell his American copyright, he would find that such copyright possessed very little market value. The status of the foreign book during such inter- regnum must in any case be an anomalous one, and would be likely to cause complications. The assertion has been made that the provision for simultaneous publication was inserted by the publishers with the malicious purpose of prevent- ing the less known British authors, who might not be in a position to make advance arrangements for their American editions, from securing under the act any American copyright. ANALYSIS OF THE COPYRIGHT LAW OF 1 89 1. I/g It is evident, however, that the pubHshers who were interested in framing the bill were not ac- tuated by any such Machiavellian intentions. It had been made clear that international copyright was expected to prove a business advantage to all the legitimate publishers engaged in reprinting English books, for the simple reason that larger profits could be secured by controlling the market for authorized editions (even when these were sold at the lowest popular prices) than by dividing the market with a number of unauthorized editions. This being the case, it was of course to the interest of the publishers to secure the protection of Ameri- can copyright for as many foreign works as possible, and the throwing over of any books to the un- authorized reprinters would entail loss upon pub- lishers as well as upon authors. It was, however, the belief of the publishers, in accepting this provision with the other typograph- ical conditions, that there neea be no difficulty in arranging to protect the works of new authors as well as those of the well-known writers. It seems probable, also, taking into account all the considerations, that the provision for simultane- ous publication is unavoidable as long as the other restrictions in the act are retained. When these can be spared, the International Copyright Law of the United States can properly be brought under the provisions of the Berne Convention. 5. The regulations previously in force for making the entries of copyright are continued, and two copies of the book, together with one copy of its l8o THE QUESTION OF COPYRIGHT. printed title-page, are to be delivered, on or before the day of publication, at the office of the Librarian of Congress, together with a fee for the entry of the title, such fee being, in the case of an American author, fifty cents, and in the case of a foreign author one dollar. 6. While the importation, during the existence of the American copyright, of editions of the books so copyrighted, whether the authors of the same be American or foreign, is prohibited, the importation of such books is permitted to the extent of not to exceed two copies in any one invoice, said copies being certified to be " for use and not for sale." Buyers of foreign books which have secured an American copyright, who may prefer for their libra- ries the foreign editions of such books, are, under this provision, enabled to import, either direct or through an importer, not to exceed two copies of such editions. The importer must have written orders for such importations, but even when fur- nished with such orders, his importations of copy- righted books must probably be limited to two copies in any one invoice or shipment. 7. Foreign periodicals of which there are no American editions " printed from type set in the United States," cannot secure for their contents an American copyright. The importation of such peri- odicals is left unrestricted, except for such numbers as may contain unauthorized reprints of material which has already in some other form secured an American copyright. An English author who copyrights and publishes ANALYSIS OF THE COPYRIGHT LAW OF 1 89 1. 181 in the United States a volume, some chapters of which have previously been printed in an English magazine, will probably not be in a position to pre- vent the reprinting in the United States of an un- authorized issue of the material contained in such chapters. For this portion of his volume no Amer- ican copyright can, under the present act, be secured. In case all the chapters in the volume have already appeared in a foreign periodical, its American copy- right has probably been forfeited. 8. For the purpose of enforcing the prohibition of the importation of editions of books securing American copyright, weekly lists of the books of which the copyright has been completed are to be furnished by the Librarian of Congress to the Secretary of the Treasury, and by the Secretary to the various customs officers concerned. The non-importation provision makes the status of books by foreign authors, which have secured an American copyright, practically identical with that heretofore in force for copyrighted American works, the importation of foreign editions of which has of necessity always been prohibited. The whole theory of copyright rests on the exclusive control by the author of a specific territory. An author to whom, under domestic or international law, such a control has been conceded, has something to sell for which he can convey a clear title, and for which, therefore, he is in a position to secure a price rep- resenting the full market value of his production. An author who can convey to his publisher, in place of an exclusive territory, only the right to compete 1 82 THE QUESTION OF COPYRIGHT. with an indefinite number of other publishers of the same work, has no real " copyright " to sell, and the compensation that he can secure will be of necessity comparatively inconsiderable. The so-called Sherman amendment, which was discussed at some length during the consideration of the present act, authorized the importation of foreign editions of works by foreign authors securing American copyright. It was iinally rejected on the several grounds : that it was incompatible with the other sections of the act, which provided for the American manufacture of all books securing Ameri- can copyright ; that it was inconsistent with the purpose of the act to place on a uniform status all books copyrighted here, whether of American or foreign origin ; and that it was inconsistent with the essential condition of " copyright," which stands for an exclusive right to the " copy " for a specific ter- ritory and for a specific term. The opponents of the amendment cited, as an instance of territorial copyright, the case of the authorized Tauchnitz and Asher editions of the books of British authors, which, while copyright on the continent, would, if imported into Great Britain, be infringements, and the importations of which into Great Britain had, therefore, always been prohibited. The Sherman amendment, in its original form, authorized the importation of foreign editions of books by American as well as by foreign authors, and did not even stipulate for the permission of the authors ; and in this form it would of necessity have rendered null and void domestic as well as inter- ANALYSIS OF THE COPYRIGHT LAW OF 189I. 183 national copyright. While such a result was doubt- less not the intention of the mover, Senator Sher- man of Ohio, or of Senators Hale, Plumb, Carlisle, Daniels and the others who supported him, this original amendment was actually carried in the Senate by a vote of 25 to 24. It was rescinded three days later, after its actual purport had been made clear by outside criticism. In its corrected shape, in which it authorized the importation of foreign editions of books by foreign authors only, it was finally defeated by the vote of 21 to 28. The whole episode was a noteworthy instance of slovenly and hap-hazard legislation. 9. The foreign author possesses under the act the same control over translations of his books as has previously been possessed by the American author, and such translations can hereafter be issued only under his authorization. This provision gives, namely, to German and French authors the control of the issue in this country of English versions of their books, and to English authors a similar control, not only over a reprint in English, but over one made, for instance, in German. There is, however, no prohibition of the importation of an edition of a book printed in a language other than that in which it has secured its American copyright. B.— Works of Art. Foreign artists and designers are accorded the same term or terms of copyright as those given to foreign authors (and to domestic artists). The condition of American manufacture is at- tached to the copyright of reproductions in the 1 84 THE QUESTION OF COPYRIGHT. form of chromos, lithographs, or photographs. American manufacture was, however, not made a condition of the more artistic forms of reproduc- tions, and foreign artists are, therefore, now in a position to control the American copyright of en- gravings or photogravures of their productions, whether these engravings, etc., are " manufactured " in Europe or in the United States. This provision is held by the artists and art publishers of France, who have in the past years suffered severely from American " appropriations " of their productions, to be of special importance. C. — Music. Musical compositions by foreign composers are accorded the same terms of American copyright as those given to American compositions, and for pro- ductions of this class American manufacture is not made a condition of the copyright. The condition of reciprocity applies to the copy- right of both music and art. The act goes into effect July ist, 1891, but its provisions become actually operative between the United States and any foreign state only when the president has made announcement, by proclama- tion, that the necessary conditions of reciprocity have been fulfilled by such state. The above suggestions concerning the purpose and probable operation of the provisions of the new act are submitted with all deference to the opinions of better authorities, and will very probably be subject to correction in one respect or another after ANALYSIS OF THE COPYRIGHT LAW OF 189I. 185 the act has come into effect. It is possible enough that some questions will arise which cannot be def- initely settled without the interpretation of the courts. G. H. P. March 25, 189I. XI. ABSTRACT OF THE COPYRIGHT LAW OF GREAT BRITAIN. The following are the dates and titles of the laws constituting the existing copyright law of Great Britain : DOMESTIC COPYRIGHT. 8 Geo. 2. c. 13. An Act for the encouragement of the arts of de- signing, engraving, and etching historical and other prints by vesting the properties thereof in the inventors and engravers during the time therein mentioned. 7 Geo. 3. u. 38. An Act to amend and render more effectual an Act made in the eighth year of the reign of King George the Second for encouragement of the arts of designing, engraving, and etching historical and other prints ; and for vesting in and securing to Jane Hogarth, vridow, the property in certain prints. 15 Geo. 3. c. 53. An Act for enabling the two universities in Eng- land, the four universities in Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity their copy- right in books given or bequeathed to the said universities and col- leges for the advancement of useful learning and other purposes of education ; and for amending so much of an Act of the eighth year of the reign of Queen Anne as relates to the delivery of books to the warehouse keeper of the Stationers' Company for the use of the several libraries therein mentioned. 17 Geo. 3. c. 57. An Act for more effectually securing the property of prints to inventors and engravers by enabling them to sue for and recover penalties in certain cases. 54 Geo. 3. t. 56. An Act to amend and render more effectual an Act of His present Majesty for encouraging the art of making new COPYRIGHT LAW OF GREAT BRITAIN. 1 87 models and casts of busts and other things therein mentioned, and for giving further encouragement to such arts. 3 Will. 4. c. 15. An Act to amend the laws relating to dramatic literary property. 5 & 6 Will. 4. c. 65. An Act for preventing the publication of lectures without consent. 6 & 7 Will. 4. c. 59. An Act to extend the protection of copyright in prints and engravings to Ireland. 5 & 6 Vict. c. 45. An Act to amend the law of copyright. 25 & 26 Vict. «,. 68. An Act for amending the law relating to copyright in works of the fine arts, and for repressing the commis- sion of fraud in the production and sale of such works. 38 & 39 Vict. c. 53, inpart. An Act to give effect to an Act of the Parliament of the Dominion of Canada respecting copyright. Sec- tion 4 only repealed. INTERNATIONAL COPYRIGHT. 7 & 8 Vict. c. 12. An Act to amend the law relating to interna- tional copyright. 15 & 16 Vict. c. 12, in part. An Act to enable Her Majesty to carry into effect a convention with France on the subject of copy- right ; to extend and explain the International Copyright Acts ; and to explain the Acts relating to copyright in engravings. Repeal not to extend to section 14. 38 Vict. c. 12. An Act to amend the law relating to international copjrright. The following is the Digest of these laws, pre- pared by Sir James Stephen, Q.C., and presented in the Report of the Royal Copyright Commission, 1878, as the most authoritative statement of British copyright law : Article i. Copyright in Private Documents. The author or owner of any literary composition or work of art has a right, so long as it remains unpublished, to prevent the publi- cation of any copy of it by any other person. 1 88 THE QUESTION OF COPYRIGHT. Article 2. Effects of Limited Publication of Private Documents. The publication of any such thing as is mentioned in the last arti- cle for a special and limited purpose, under any contract, or upon any trust express or implied, does not authorize the person to whom such thing is published to copy or reproduce it, except to the extent and for the purposes for which it has been lent or intrusted to him. Article 3. Letters. A person who writes and sends a letter to another retains his copy- right in such letter, except in so far as the particular circumstances of the case may give a right to pulilish such letter to the person ad- dressed, or to his representatives, but the property in the material on which the letter is written passes to the person to whom it is sent, so as to entitle him to destroy or transfer it. Article 4. No other Copyright except by Statute. There is (probably) no copyright after publication in any of the things mentioned in Article i, except such copyright as is given by the express words of the statutes hereinafter referred to. Publication in this article means in reference to books (as defined in the next article) publication for sale. It is doubtful whether in relation to works of art it has any other meaning. There is (it seems) no copyright in dramatic performances except by statute. Article 5. Book defined — Law of Copyright in Books. In this chapter the word "book " means and includes every vol- ume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan, separately published. The word ' ' copyright " means the sole and exclusive liberty of printing, or otherwise multiplying copies of any subject to which the word is applied. When a book is published in the lifetime of its author, the copy- right therein is the personal property of the author and his assigns COPYRIGHT LAW OF GREAT BRITAIN. 1 89 from the date of such publication, for whichever may be the longer of the two following terms, that is to say : (1) A term of 42 years from publication. (2) The life of the author, and a term of 7 years, beginning from his death. If the publication takes place after the author's death, the propri- etor of the author's manuscript and his assigns have copyright in his book for a term of 42 years from its first publication. If one person employs and pays another to write a book on the terms that the copyright therein shall belong to the employer, the employer has the same copyright therein as if he had been the author. If the publisher or proprietor of any encyclopaedia, review, maga- zine, or periodical work, or work published in parts or series, em- ploys and pays persons to compose any volume, part, essay, article, or portion thereof, on the terms that the copyright therein shall belong to such publisher or proprietor, such publisher or proprietor has upon publication the same rights as if he were the author of the whole work (with the following exceptions) : 1. After 28 years from the first publication of any essay, article, or portion in any review, magazine, or other periodical work of a like nature [not being an encyclopedia], the right of pub- lishing the same in a separate form reverts to the author for the remainder of the term for which his copyright would have endured if the same had been originally published by him elsewhere. 2. During the said term of 28 years the publisher or proprietor may not publish any such essay, article, or portion, separately or singly, without the consent of the author or his assigns. The author of any such magazine as aforesaid may, by contract with any such publisher or proprietor, reserve the right of publishing any work, his composition, in a separate form, and if he does so he is entitled to copyright in such composition when so published for the same term as if such publication were the first publication, but without prejudice to the right of the publisher or proprietor to pub- lish the same as part of such periodical work. In order to provide gainst the suppression of books of importance to the public, the Judicial Committee of the Privy Council are em- powered, on complaint that the proprietor of the copyright in any book after the death of its author has refused to republish or allow IgO THE QUESTION OF COPYRIGHT. the republication of the same, and that by reason of such refusal such book may be withheld from the public, to grant a license to such complainant to publish such book in such manner and subject to such conditions as they think fit, and the complainant may publish such book accordingly. The whole of this article is subject to the limitations contained in the subsequent articles of this chapter. It applies — (a) To all books published after 1st July, 1842. (b) To all books published before that day in which copyright was then subsisting, unless such copyright was vested in any pub- lisher or other person who acquired it for any consideration, other than that of natural love or affection, in which case such , copyright endures for the term then provided for by law, unless the author, if living on that day, or if he were then dead his personal representative, and (in either case) the proprietor of the copyright, registered before the expiration of the term of copyright to which they were then entitled, consent to accept the benefits of the Act 5 & 6 Vict. c. 45 in a form provided in a schedule therein. Article 6. Who may obtain Copyright in Books. In order that copyright in a published book may be obtained under the provisions of Article 5, the book must in all cases be published in the United Kingdom. The author or other person seeking to entitle himself to copyright may be either — (a) A natural born or naturalized subject of the Queen, in which case his place of residence at the time of the publication of the book is immaterial ; or {/>) A person who at the time of the publication of the book in which copyright is to be obtained owes local and temporary allegiance to Her Majesty by residing at that time in some part of Her Majesty's dominions. It is probable, but not certain, that an alien friend who publishes a book in the United Kingdom while resident out of Her Majesty's dominions, acquires copyright throughout Her Majesty's dominions by such publication. COPYRIGHT LAW OF GREAT BRITAIN. I9I Article 7. Previotts and Contemporary Publication out of the United Kingdom. No copyright in a book published in the United Kingdom can be obtained under Article 5, if the book has been previously published by the author in any foreign country, but the contemporaneous pub- lication of a book in a foreign country and in the United Kingdom does not prevent the author from obtaining copyright in the United Kingdom. It is uncertain whether an author obtains copyright by publishing a book in the United Kingdom, after a previous publication thereof in parts of Her Majesty's dominions out of the United Kingdom. It is uncertain whether an author acquires copyright under Article 5 in any part of Her Majesty's dominions out of the United Kingdom (apart from any local law as to copyright which may be in force there) by the publication of a book in such part of Her Majesty's dominions. Article 8. No Copyright in immoral Publications. No copyright can exist in anything in which copjfright would other- wise exist if it is immoral, irreligious, seditious, or libelous, or if it professes to be what it is not, in such a manner as to be a fraud upon the purchasers thereof. Article g. What is Infringement of Copyright in a Book, and what not — Fair Use of Books. The owner of the copyright in a book is not entitled to prevent other persons from publishing the matter contained in it if they invent or collect it independently, nor to prevent them from making a fair use of its contents in the composition of other books. The question, what is a fair use of a book, depends upon the cir- cumstances of each particular case, but the following ways of using a book have been decided to be fair : (a) Using the information or the ideas contained in it without copying its words or imitating them so as to produce what is substantially a copy. (*) Making extracts (even if they are not acknowledged as such) 192 THE QUESTION OF COPYRIGHT. appearing, under all the circumstances of the case, reason- able in quality, number, and length, regard being had to the object with which the extracts are made and to the sub- jects to which they relate. (c) Using one book on a given subject as a guide to authorities afterward independently consulted by the author of another book on the same subject. (d) Using one book on a given subject for the purpose of checking the results independently arrived at by the author of another book on the same subject. An abridgment may be an original work if it is produced by a fair use of the original or originals from which it is abridged, but the re- publication of a considerable part of a book is an infringement of the copyright existing in it, although it may be called an abridgment, and although the order in which the republished parts are arranged may be altered. Article io. Crown Copyright. It is said that Her Majesty and her successors have the right of granting by patent from time to time to their printers an exclusive right to print the text of the authorized version of the Bible, of the Book of Common Prayer, and possibly the text of Acts of Parliament. Article ii. University Copyright. The Universities of Oxford, Cambridge, Edinburgh, Glasgow, St. Andrew's, and Aberdeen, each college or house of learning at the universities of Oxford and Cambridge, Trinity College, Dublin, and the colleges of Eton, Westminster, and Winchester, have forever the sole liberty of printing and reprinting all such books as have been or hereafter may be bequeathed or given to them, or in trust for them by the authors thereof, or by their representatives, unless they were given or bequeathed for any limited term. Article 12. How such Right forfeited. The exclusive right mentioned in the last article lasts so long only as the books or copies belonging to the said universities or colleges COPYRIGHT LAW OF GREAT BRITAIN. 1 93 are printed only at their own printing presses within the said univer- sities or colleges respectively, and for their sole benefit and advan- tage. If any university or college delegates, grants, leases, or sells its copyright or exclusive right of printing books granted by 15 Geo. 3. c. 53, or any part thereof, or allows or authorizes any person to print or reprint the same, the privilege granted by the said Act becomes void and of no effect, but the universities or colleges may sell the copyrights bequeathed to them as for the terms secured to authors by the 8 Anne c. 19. Article 13. Term of Copyright in Dramatic Pieces. The author, or the assignee of the author, of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, or musical ' composition not printed and published by such author or assignee, has, as his own property, the sole liberty of representing or causing to be represented or performed, any such dramatic piece or musical composition at any place of dramatic entertainment whatever in Her Majesty's dominions (possibly in perpetuity, but more proba- bly for) whichever is the longer of the two following terms, viz.— (i) Forty-two years from the first public representation of such dramatic piece or musical composition. (2) The life of the author and a further term of seven years begin- ning from his death. The singing of a single song of a dramatic character in a dramatic manner may amount to a dramatic entertainment within the meaning of this article. Any place at which a dramatic entertainment is given [ ? for profit] on any particular occasion is a place of dramatic entertainment within the meaning of this article. Article 14. Condition of Copyright in Dramatic Pieces. The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical composition has been printed and published as a book before the first, representation thereof. 13 194 THE QUESTION OF COPYRIGHT. Or, if it has been publicly represented or caused to be represented by the author or his assigns in any place out of Her Majesty's domin- ions before it was publicly represented in them, except under the International Copyright Act. Article 15. Copyright in and Representation of Dramas. Copyright in a book containing or consisting of a dramatic piece or musical composition is a right distinct from the right to represent such dramatic piece or musical composition on the stage, and no as- signment of the copyright of any such book conveys to the assignee the right of representing or performing such dramatic piece or mu- sical composition unless an entry of such assignment is made in the registry book mentioned in Article 23, expressing the intention of the parties that such right should pass. Article 16. Representation of a Drama no Infringement of Copyright. A dramatic piece or musical composition published as a book may (it seems probable) be publicly represented without the consent of the author or his assigns. Article 17. Dramatization of Novels. The public representation of a dramatic piece constructed out of a novel is not an infringement of the copyright of the author of the novel or his assigns, but the printing and publication as a book of such dramatic piece so represented may be such an infringement. If two persons independently of each other convert a novel into a dramatic piece, each has an exclusive right of representing his own dramatic piece, though one of them may be the author of the novel so dealt with and though the two pieces may have parts in common. Article 18. Inftingement of Copyright in a Musical Composition. Copyright in a musical composition is infringed when a substantial portion of the music in which copyright exists is reprodubed either without any alteration or with such alterations as are required to COPYRIGHT LAW OF GREAT BRITAIN. 195 adapt it to a different purpose or instrument, the alterations being of such a character that the substantial identity between the original and the altered version can be recognized by the ear. Article 19. Copytight in Lectures. The author of any lecture, or his assign, has by statute the sole right of publishing any lecture, of the deUvery of which notice in writing has been given to two justices living within five miles from the place where such lecture is delivered two days at least before it is delivered, unless such lecture is delivered in any university, pub- lic school, or college, or on any public foundation, or by any person in virtue of or according to any gift, endowment, or foundation. The author of any lecture has [probably] at common law the same right as by statute, without giving such notice as is required by statute, but he cannot recover the penalties provided by the Act and specified in Article 35, for an infringement of his copyright. Article 20. Copyright in Sculpture. Every person who makes or causes to be made any new and original sculpture, or model, or copy, or cast, . . . ' has the sole right therein for the term of 14 years from first putting forth or publishing the same, provided that the proprietor causes his name, with the date, to be put on every such thing before it is published. If the proprietor be living at the end of the term of 14 years, his right returns to him for a further term of 14 years, unless he has divested himself thereof. Article 21. Copyright in Paintings and Photographs. The author, being a British subject or resident within the domin- ions of Her Majesty, of any original painting, drawing or photo- graph, not having been sold before the 29th July, 1862, has the sole ' Here is a reference to a note, scheduling the usual subjects of sculpture, but explaining that the section of the law here concerned " is a miracle of intricacy and verbosity " and involves much doubt. 196 THE QUESTION OF COPYRIGHT. and exclusive right of copying, engraving, reproducing, and multi- plying such painting or drawing, and the design thereof, or such photograph and the negative thereof, by any means or of any size, whether made in the Queen's dominions or not, for the term of his life and seven years after his death, but this right does not affect the right of any other person to represent any scene or object represented by any such painting. If any painting or drawing, or the negative of any photograph, hereinbefore mentioned, is made by the author for or on behalf of any other person for a good or valuable consideration, such person is entitled to copyright therein. If any such thing is, after the 29th July, 1862, for any such con- sideration transferred for the first time by the owner to any other person, the owner may, by an agreement in writing signed at or be- fore the time of such transfer by the transferee, reserve the copy- right to himself, or he may, by an agreement in writing signed by himself or by his agent duly authorized, transfer the copyright to such transferee. (If no such agreement in writing is made, the copyright in such painting ceases to exist.) Article 22. Copyright in Engravings, Every one has for 28 years from the first publishing thereof the sole right and liberty of multiplying, by any means whatever, copies of any print of whatever subject which he has — (a) Invented or designed, graved, etched, or worked in mezzotinto or chiaro-oscuro ; or which he has — {b) From his own work, design, or invention, caused or procured to be designed, engraved, etched, or worked in mezzotinto or chiaro-oscuro ; or which he has — (f) Engraved , etched, or worked in mezzotinto or chiaro-oscuro, or caused to be engraved, etched, or worked from any picture, drawing, model, or sculpture, either ancient or modern : Provided that such prints are truly engraved with the name of the proprietor on each plate and printed on every print. Prints taken by lithography and other mechanical processes are now upon the same footing as engravings. COPYRIGHT LAW OF GREAT BRITAIN. 1 97 Article 23. The Registration of Books. A book of registry must be kept at Stationers' Hall, in which the proprietor of copyright in any book, or of the right of representation of any dramatic piece or musical composition, whether in manuscript or otherwise, may upon the payment of a fee of 5j. enter in the reg- ister the particulars stated in the form given in the foot-note.' The proprietor of the copyright in any encyclopaedia, review, magazine, or periodical work, or other work published in a series, is entitled to all the benefit of regfistration on entering in the book o( registry the title of such work, the time of publishing the first volume or part, and the name and place of abode of the proprietor and pub- lisher when the publisher is not also the proprietor. Every such registered proprietor may assign his interest or any portion of his interest by making an entry in the said book of such assignment in the form given in the foot-note.' Licenses affecting any such copyright may also be registered in the said register. Any person aggrieved by any such entry may apply to the High Court, or any judge thereof, to have such entry expunged or varied, and the court may make such order for that purpose as it thinks just. 1 (a) Original Entry of Proprietorship of Copyright ol a Book. Time of mak- iDg the En- tries. TiUeofthe Book. Name of the Publisher and Place of Publi- cation. Name and Place of Abode of the Proprie- tor of the Copy- right. Date of First Publication. ' {B) Form of Entry of Assignment of Copyright in any Book previously registered. Date of Entry. Title of Book. Set out the Title and refer to the Page of the Registry Book in which the Original Entry of the Copyright thereof is made. Assignor of Copyright. Assignee of Copyright. 198 THE QUESTION OF COPYRIGHT. It is a misdemeanor to make or cause to be made any false entry in such book wilfully. The oiEcer in charge of the book is bound to give sealed and certified copies of the entries contained therein on payment of a fee of 5^., and such copies are primA facie proof of the matters alleged therein. The fee for the registration of university copyrights and for copies of them is td., and they may be inspected without fee. Article 24 Effect of Registration in case of Books. No proprietor of copyright in any book can take any proceedings in respect of any infringement of his copyright unless he has, before commencing such proceedings, caused an entry to be made in the said register under the last article. The omission to make such entry does not affect the copyright in any book, but only the right to sue or proceed in respect of the infringement thereof. Article 25. Registration in respect of Dramatic Copyright. The remedies which the proprietor of the sole liberty of represent- ing any dramatic piece has under Article 32 are not prejudiced by an omission to make any entry respecting such exclusive right in the said register. Article 26. Registration of Copyright in Paintings, etc. A book entitled the Register of Proprietors of Copyright in Paint- ings, Drawings, and Photographs, must be kept at the Hall of the Stationers' Company. A memorandum of every copyright to which any person is entitled under Article 21, and of every subsequent assignment of any such copyright, must be entered therein ; such memorandum must contain a statement of : (a) The date of such agreement or assignment ; (fi) The names of the parties thereto ; («■) The name and place of abode of the person in whom such COPYRIGHT LAW OF GREAT BRITAIN. 199 copyright is vested by virtue thereof, and of the author of the work ; (d) A short description of the nature and subject of such work, and, if the person registering so desires, a sketch, outline, or photograph of the work in addition thereto. No proprietor of any such copyright is entitled to the benefit of 25 & 26 Vict. c. 68 until such registration, and no action can be main- tained, nor any penalty be recovered, in respect of anything done before registration ; but it is not essential to the validity of a regis- tered assignment that previous assignments should be registered. The three paragraphs of Article 23, relating to the correction of errors in the register, the making of false entries, and the giving of certificates, apply also to the book in this article mentioned. Article 27. Penalties for infringing Copyright in Books. Every one is liable to an action who, in any part of the British dominions — (a) Prints or causes to be printed, either for sale or exportation, any book in which there is subsisting copyright, without the consent in writing of the proprietor ; (S) Imports for sale or hire any such book so having been unlaw- fully printed from parts beyond the sea ; (c) Knowingly sells, publishes, or exposes to sale or hire, or causes to be sold, published, or exposed to sale or hire, or has in his possession for sale or hire any book so unlawfully printed or imported. The action must be brought in a Court of Record and within twelve months after the ofience. Article 28. Special Penalty for unlawfully importing Copyright Books. The following consequences are incurred by every one, except the proprietor of the copyright of any book, or some person authorized by him, who imports or brings, or causes to be imported or brought [for sale or hire], into the United Kingdom, or into any other part of the British dominions, any printed book in which there is copyright, 200 THE QUESTION OE COPYRIGHT. first composed, written, or printed [and published] in any part of the United Kingdom, and reprinted in any country or place out of the British dominions ; Or, who knowingly sells, publishes, or exposes to sale, or lets to hire, or has in his possession for sale or hire any such book, that is to say : (a) Every such book is forfeited, and must be seized by every officer of Customs or Excise, and in that case must be destroyed by such officer. (i) The person so offending must, upon conviction before two justices, be fined lo/. for every such offence, and double the value of every copy of any such book in respect of which he commits any such offence. Provided that if the Legislature or proper legislative authorities in any British possession pass an Act or make an Ordinance, which, in the opinion of Her Majesty, is sufficient for the purpose of secur- ing to British "authors reasonable protection within such possessions. Her Majesty may approve of such Act, and issue an Order in Council" declaring that so long as the provisions of such Act remain in force, the prohibition hereinbefore contained shall be suspended so far as regards such colony. Article 29. Pirated Copies forfeited to Registered Owner. All copies of any book in which there js a duly registered Copyright unlawfully printed or imported without the consent in writing under his hand of the registered proprietor of the copyright are deemed to be the property of the registered proprietor of such copyright, and he may sue for and recover the same, with damages for the detention thereof, from any person who detains them after a demand thereof in writing. Article 30. Copies of Books to be delivered for Public Libraries, and Penalties for Non-delivery. A copy of the first edition and of every subsequent edition contain- ing additions and alterations of every book published in any part of the British dominions must be delivered at the British Museum COPYRIGHT LAW OF GREAT BRITAIN. 20I between lo A. M. and 4 p. M. on some week-day, other than Ash Wednesday, Good Friday, or Christmas Day, within a month after its publication, if it is published in London, within three months if it is published in the United Kingdom elsewhere than in London, and within twelve months if it is published in any other part of the British dominions. It may be delivered to any person authorized by the Trustees of the British Museum to receive it, and such person must give a receipt in writing therefor. Copies of every edition of every book published must, if demanded, be delivered to an officer of the Stationers' Company for each of the following libraries ; the Bodleian Library, the Cambridge University Library, the Advocates Library at Edinburgh, and the Library of Trinity College, Dublin. The demand, in writing, must be left at the place of abode of the publisher, within twelve months after the publication of the book, and the copies must be delivered within one month after such de- mand, either to the Stationers' Company or to the said libraries, or to any one authorized to receive the copies on their behalf. The copy for the British Museum must be bound, stitched, or sewed together, and upon the best paper on which the book is printed. The copies for the other libraries mentioned must be upon the paper of which the largest number of copies of the book or edition are printed for sale, in the like condition as the copies prepared for sale by the publisher. The copies must in each case include all maps and prints belong- ing thereto. Any publisher making default in such delivery as is hereinbefore mentioned, is liable to a maximum penalty of 5/. and the value of the copy not delivered. This penalty may be recovered upon sum- mary proceeding before two justices of the peace, or a stipendiary magistrate, at the suit of the librarian, or other officer properly authorized, of the library concerned. Article 31. Penalty for Offences against University Copyright, Every one incurs the penalties hereinafter mentioned who does any of the following things with any book of which the copyright is 202 THE QUESTION OF COPYRIGHT. vested in any university or college under Article ii ; (that is to say,) (a) Who prints, reprints, or imports, or causes to be printed, reprinted, or imported any such book. (6) Knowing the same to be so printed or reprinted, sells, pub- lishes, or exposes to sale, or causes to be sold, published, or exposed to sale, any such book. The penalties for the said offences are : (a) The forfeiture of every sheet being part of such book to the university or college to v\rhich the copyright of such book belongs, wrhich university or college must forthwith cancel and make waste paper of them. (d) One penny for every sheet found in the custody of such person printing or printed, published or exposed to sale, half to go to the Queen, and half to the informer. None of the penalties aforesaid can be incurred — Unless the title to the copyright of the book in respect of which the offence was committed was registered either before 24th June, 1775, or within two months after the time when the bequest or gift of the copyright of any book came to the knowledge of the vice-chancellor of any university or the head of any college or house of learning ; Or unless the clerk of the Stationers' Company, being duly re- quired to make the entry, refuses to do so, and the univer- sity advertises such refusal in the Gazette, in which case the clerk incurs a penalty of 20/. to the proprietors of the copyright. The penalty must be sued for in the High Court. Article 32. Penalty for performing Dramatic Pieces. Every person who, without the consent in writing of the author or other proprietor first obtained, represents or causes to be represented at any place of dramatic entertainment in the British dominions any dramatic piece or musical composition is liable to pay to the author or proprietor for every such representation an amount not less than 40J., or the full amount of the benefit or advantage arising from COPYRIGHT LAW OF GREAT BRITAIN. 203 such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damages. The penalty may be recovered in any court having jurisdiction in such cases. Article 33. Penalty for Infringement of Copyright in Works of Art. Every one (including the author, when he is not the proprietor) commits an offence who, without the consent of the proprietor of the copyright therein, does any of the following things with regard to any painting, drawing, or photograph in which copyright exists ; (that is to say,) («) Repeats, copies, colorably imitates, or otherwise multiplies, for sale, hire, exhibition, or distribution, any such work ; or the design thereof ; {S) Causes or procures to be done anything mentioned in (a) ; (c) Sells, publishes, lets to hire, exhibits, or distributes, offers for any such purposes, imports into the United Kingdom any such repetition, copy, or other imitation of any such work or of the design thereof, knowing that it has been unlaw- fully made ; (rf) Causes or procures to be done, any of the things mentioned in (<;) ; (LOW. HENRY LOUMYER. COMTE DE LA ALMINA. EMMANUEL ARAGO. LOUIS-JOSEPH JANVIER. Ffe. For Switzerland . . DROZ. For Tunis H. MARCHAND. Protocol. On proceeding to the signature of the proch-verbal recording the deposit of the acts of ratification given by the High Parties Signatory to the Convention of the gth September, 1886, for the creation of an International Union for the protection of literary and artistic works, the Minister of Spain renewed, in the name of his Government, the declaration recorded in the proch-verbal of the Conference of the 9th September, 1886, according to which the accession of Spain to the Convention includes that of all the territories dependent upon the Spanish Crown. 312 THE QUESTION OF COPYRIGHT. The Undersigned have taken note of this declaration. In witness whereof they have signed the present Protocol, done at Berne, in nine copies, the 5th September, 1887. For Great Britain . . F. O. ADAMS. For Germany . . . . ALFRED von BULOW. For Belgium . . . . HENRY LOUMYER. For Spain COMTE DE LA ALMINA. For France . . . . EMMANUEL ARAGO. For Hayti LOUIS-JOSEPH JANVIER. For Italy ¥t. For Switzerland . . DROZ. For Tunis H. MARCHAND. THE INTERNATIONAL COPYRIGHT ACT, 1 886. [49 & 50 Vict., c. 33.] Arrangement of Sections. Section. 1 . Short titles and construction . -^. Amendment as to extent and effect of order under International Copy- right Acts. 3. Simultaneous publication. 4. Modification of certain provisions of Tnternationai Copyright Acts. 5. Restriction on translation. 6. Application of Act to existing works. 7. Evidence of foreign copyright. 8. Application of Copyright Acts to Colonies. 9. Application of International Copyright Acts to Colonies. 10. Making of Orders in Council. 11. Definitions. 13. Repeal of Acts. Schedules. An act to amend the Law respecting International and Colonial Copyright. [25th June, 1886.] Whereas, by the International Copyright Acts Her Majesty is authorized by Order in Council to direct that as regards literary and artistic works first published in a foreign country the author shall have copyright therein during the period specified in the order, not exceeding the period during which authors of the like works first published in the United Kingdom have copyright : THE BRITISH ACT OF 1 886. 313 And whereas, at an international conference held at Berne in the month of September one thousand eight hundred and eighty-five a draft of a convention was agreed to for giving to authors of literary and artistic works first published in one of the countries parties to the convention copyright in such works throughout the other coun- tries parties to the convention ' And whereas, without the authority of Parliament such convention cannot be carried into effect in Her Majesty's dominions and conse- quently Her Majesty cannot become a party thereto, and it is expe- dient to enable Her Majesty to accede to the convention ; Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and. by the authority of the same, as follows : I. — (i.) This Act may be cited as the International Copyright Act, 1886. (2.) The Acts specified in the first part of the First Schedule to this Act are in this Act referred to and may be cited by the short titles in that schedule mentioned, and those Acts, together with the enactment specified in the second part of the said schedule, are in this Act collectively referred to as the International Copyright Acts. The Acts specified in the Second Schedule to this Act may be cited by the short titles in that schedule mentioned, and those Acts are in this Act referred to, and may be cited collectively as the Copyright Acts. (3.) This Act and the International Copyright Acts shall be con- strued together, and may be cited together as the International Copyright Acts, 1844 to 1886. 2. The following provisions shall apply to an Order in Council under the International Copyright Acts : — (l.) The order may extend to all the several foreign countries named or described therein : (2.) The order may exclude or limit the rights conferred by the International Copyright Acts in the case of authors who are not subjects or citizens of the foreign countries named or described in that or any other order, and if the order contains such limitation and the author of a literary or artistic work first produced in one of those foreign countries is not a British subject, nor a subject or citi- zen of any of the foreign countries so named or described, the pub- lisher of such work, unless the order otherwise provides, shall, for 3r4 THE QUESTION OF COPYRIGHT. Ihe purpose of arny legal proceedings in the United Kingdom for protecting any copyright in such work, be deemed to be entitled to such copyright as if he were the author, but this enactment shall not prejudice the rights of such author ai«l publisher as between them- selves : (3.) The International Copyright Acts and an order made there- under shall not confer on any person any greater right or longer term of copyright in any work than that enjoyed in the foreign country in which such work was first produced. 3. — (i.) An Order in Council under the International Copyright Acts may provide for determining the country in which a literary or artistic work, first produced simultaneously in two or more countries, is to be deemed, for the purpose of copyright, to have been first produced, and for the purposes of this section "country" means the United Kingdom and a country to which an order under the said Acts applies. (2.) Where a work produced simultaneously in the United King- dom, and in some foreign country or countries, is by virtue of an Order in Council under the International Copyright Acts deemed for the purpose of copyright to be first produced in one of the said foreign countries, and not in the United Kingdom, the copyright in the United Kingdom shall be such only as exists by virtue of pro- duction in the said foreign country, and shall not be such as would have been acquired if the work had been first produced in the United Kingdom. 4. — (l.) Where an order respecting any foreign country is made under the International Copyright Acts the provisions of those Acts with respect to the registry and delivery of copies of works shall not apply to works produced in such country except so far as provided by the order. (2.) Before making an Order in Council under the International Copyright Acts in respect of any foreign country. Her Majesty in Council shall be satisfied that that foreign country has made such provisions (if any) as it appears to Her Majesty expedient to require for the protection of authors of works first produced in the United Kingdom. 5. — (i.) Where a work being a book or dramatic piece is first pro- duced in a foreign country to which an Order in Council under the International Copyright Acts applies, the author or publisher, as the case may be, shall, unless otherwise directed by the Order, have THE BRITISH ACT OF 1886. 315 the same right of preventing the production in and importation into the United Kingdom of any translation not authorized by him of the said work as he has of preventing the production and importation of the original work. (2.) Provided that if after the expiration of ten years, or any other term prescribed by the order, next after the end of the year in which the work, or in the case of a book published in numbers each num- ber of the book, was first produced, an authorized translation in the English language of such work or number has not been produced, the said right to prevent the production in and importation into the United Kingdom of an unauthorized translation of such work shall cease. (3.) The law relating to copyright, including this Act, shall apply to a lawfully produced translation of a work in like manner as if it were an original work. (4.) Such of the provisions of the International Copyright Act, 1852, relating to translations, as are unrepealed by this Act shall apply in like manner as if they were re-enacted in this section. 6. Where an Order in Council is made under the International Copyright Acts with respect to any foreign country, the author and publisher of any literary or artistic work first produced before the date at which such order comes into operation shall be entitled to the same rights and remedies as if the said Acts and this Act and the said order had applied to the said foreign country at the date of the said production : Provided that where any person has before the date of the publication of an Order in Council lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from or in con- nection with such production which are subsisting and valuable at the said date. 7. Where it is necessary to prove the existence or proprietorship of the copyright of any work first produced in a foreign country to which an Order in Council under the International Copyright Acts applies, an extract from a register, or a certificate, or other docu- ment stating the existence of the copyright, or the person who is the proprietor of such copjfright, or is for the purpose of any legal pro- ceedings in the United Kingdom deemed to be entitled to such copy- right, if authenticated by the official seal of a Minister of State of the said foreign country, or by the official seal or the signature of a British diplomatic or consular officer acting in such country, shall be 3l6 THE QUESTION OF COPYRIGHT. admissible as evidence of the facts named therein, and all courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall admit in evidence, vpithout proof, the documents authenticated by it. 8. — (I.) The Copyright Acts shall, subject to the provisions of this Act, apply to a literary or artistic work first produced in a British possession in like -manner as they apply to a work first produced in the United Kingdom ; Provided that — (a) the enactments respecting the registry of the copyright in such work shall not apply if the law of such possession provides for the registration of such copyright ; and {6) where such work is a book the delivery to any persons or body of persons of a copy of any such work shall not be required. (2.) Where a register of copyright in books is kept under the au- thority of the government of a British possession, an extract from that register purporting to be certified as a true copy by the officer keeping it, and authenticated by the public seal of the British pos- session, or by the official seal or the signature of the governor of a British possession, or of a colonial secretary, or of some secretary or minister administering a department of the government of a British possession, shall be admissible in evidence of the contents of that register, and all courts shall take judicial notice of every such seal and signature, and shall admit in evidence, without further proof, all documents authenticated by it. (3.) Where before the passing of this Act an Act or ordinance has been passed in any British possession respecting copyright in any literary or artistic works, Her Majesty in Council may make an Order modifying the Copyright Acts and this Act, so far as they apply to such British possession, and to literary and artistic works first pro- duced therein, in such manner as to Her Majesty in Council seems expedient. (4. ) Nothing in the copyright Acts or this Act shall prevent the passing in a British possession of any Act or ordinance respecting the copyright within the limits of such possession of works first pro- duced in that possession, 9. Where it appears to Her Majesty expedient that an Order in Council under the International Copyright Acts made after the pass- ing of this Act as respects any foreign country, should not apply to any British possession, it shall be lawful for Her Majesty by the THE BRITISH ACT OF 1886. 317 same or any other Order in Council to declare that such Order and the International Copyright Acts and this Act shall not, and the same shall not, apply to such British possession, except so far as is necessary for preventing any prejudice to any rights acquired pre- viously to the date of such Order ; and the expressions in the said Acts relating to Her Majesty's dominions shall be construed accord- ingly ; but save as provided by such declaration the said Acts and this Act shall apply to every British possession as if it were part of the United Kingdom. 10. — (i.) It shall be lawful for Her Majesty from time to time to make Orders in Council for the purpose of the International Copy- right Acts and this Act, for revoking or altering any Order in Council previously made in pursuance of the said Acts, or any of them. (2.) Any such Order in Council shall not affect prejudicially any rights acquired or accrued at the date of such Order coming into operation, and shall provide for the protection of such rights. II. In this Act, unless the context otherwise requires — The expression "literary and artistic work" means every book, print, lithograph, article of sculpture, dramatic piece, musical com- position, painting, drawing, photograph, and other work of literature and art to which the Copyright Acts or the International Copyright Acts, as the case requires, extend. The expression " author " means the author, inventor, designer, engraver, or maker of any literary or artistic work, and includes any person claiming through the author ; and in the case of a posthu- mous work means the proprietor of the manuscript of such work and any person claiming through him ; and in the case of an encyclopae- dia, review, magazine, periodical work, or work published in a series of books or parts, includes the proprietor, projector, publisher, or conductor. The expressions "performed" and "performance" and similar words include representation and similar words. The expression " produced " means, as the case requires, published or made, or, performed or represented, and the expression "pro- duction " is to be construed accordingly. The expression " book published in numbers " includes any review, magazine, periodical work, work published in a series of books or parts, transactions of a society or body, and other books of which different volumes or parts are published at different times. The expression " treaty " includes any convention or arrangement, 318 THE QUESTION OF COPYRIGHT. The expression " British possession " includes any part of Her Majesty's dominions exclusive of the United Kingdom ; and where parts of such dominions are under both a central and a local legis- lature, all parts under one central legislature are for the purposes of this definition deemed to be one British possession. 12. The Acts specified in the Third Schedule to this Act are hereby repealed as from the passing of this Act to the extent in the third column of that schedule mentioned : Provided as folio ws : (a.) Where an Order in Council has been made before the passing of this Act under the said Acts as respects apy foreign country the enactments hereby repealed shall continue in full force as respects that country until the said Order is revoked. (i.) The said repeal and revocation shall not prejudice any rights acquired previously to such repeal or revocation, and such rights shall continue and may be enforced in like manner as if the said repeal or revocation had not been enacted or made. FIRST SCHEDULE. International Copyright Acts. Part I, Session and Chapter 7 & 8 Vict. c. 12. 15 & i6 Vict. c. 12 38 & 39 Vict. u. 12 Title. An Act to amend the law relating to International Copyright. An Act to enable Her Majesty to carry into effect a convention with France on the subject of copyright, to extend and explain the Interna- tional Copyright Acts, and to ex- plain the Acts relating to copyright m engravings. An Act to amend the law relating to International Copyright. Short Title. The International Copyright Act, 1844. The International Copyright Act, l8j2. The International Copyright Act. 1875- THE BRITISH ACT OF 1 886. 319 FIRST SCHEDULE. Part II. Session and Chapter Title. Enactment referred to. 25 & 26 Vict. t. 68 An Act for amending the law relat- ing to copyright in works of the fine arts, and for repressing the commission of fraud in the produc- tion and sale of such works. Section twelve. SECOND SCHEDULE. Copyright Acts. Session and Chapter 8 Geo. :*. c. 7 Geo. 3. t. 38 15 Geo. 3. c. 53 Title. Short Title. An Act for the encouragement of the arts of designing, engraving. and etching, historical, and other prints by vesting the properties thereof m the inventors and en- gravers during the time therein- mentioned. An Act to amend and render more effectual an Act made in the eighth year of the reign of King George the Second, for encourage- ment of the arts of designing, en- graving, and etching, historical and other prints, and for vesting in and securing to Jane Hogarth, widow, the property in certain prints. An Act for enabling the two Uni- versities in England, the four Universities in Scotland, and the several Colleges of Eton, West- minster, and Winchester, to hold in perpetuity their copyright in booKs given or bequeathed to the said universities and colleges for the advancement of useful learn- ing and other purposes of educa- tion ; and for amending so much of an Act of the eighth year of the reign of Queen Anne, as re- lates to the delivery of books to the warehouse-keeper of the Sta- tionera* Company for the use of the several libraries therein men- tioned. > The Engraving Copyright Act, 1734- The Engraving Copyright Act, 1766. The Copyright Act, 1775- 520 THE QUESTION OF COPYRIGHT. SECOND SCHEDULE— Ci>«^m«^rf. Session and Chapter Short Title. 17 Geo. 3. c. 57 - 54 Geo, 3. u. 56 1 Will. ^ 5 & 6 Will. 4. c. 65 6 & 7 Will. 4. c. 69 6 & 7 Will. 4. c. no 5 & 6 Vict. c. 45 10 & n Vict. c. 95 25 & 26 Vict. c. 68 An Act for more effectually securing the property of prints to inventors and engravers by enabling them to sue for and recover penalties in certain cases. An Act to amend and render more effectual an Act of His present Majesty for encouraging the art of mailing new models and casts of busts and other things therein mentioned, and for giving further encouragement to such arts. An Act to amend the laws relating to Dramatic Literary Property. An Act for preventing the publica- The Lectures Copy- tion of Lectures wimout consent. right Act, 1835. The Prints Copy- right Act, 1777. The Sculpture Copyright Act, 1814. The Dramatic Copy- right Act, 1833. An Act to extend the protection of copyright in prints and engrav- ings to Ireland. An Act to repeal so much of an Act of the fifty-fourth year of King George the Third, respecting copy- rights, as requires the delivery of a copy of every published book to the libraries 01 bion College, the four Universities of Scotland, and of the King's Inns in Dublin. An Act to anlend the law of copy- right. An Act to amend the law relating to the protection in the Colonies of works entitled to copyright in the United Kingdom. An Act for amending the law relat- ing to copyright in works of the fine arts, and for repressing the commission of fraud in the pro- duction and sale of such works. The Prints and En- gravings Copy- right Act, 1836. The Copyright Act, 1836. The Copyright Act, 1842. The Colonial Copy- right Act, 1847. The Fine Arts Copyright Act, 1S62. , THE BRITISH ACT OF 1 886. 321 THIRD SCHEDULE. Acts Repealed. Session and Chapter Title. Extent of Repeal. 7 & 8 Vict. c. 12 15 & 16 Vict. c. 12 25 & 26 Vict, c. 68 An Act to amend the law relating to international copyright. An Act to enable Her Majesty to carry into effect a convention with France on the subject of copy- right, to extend and explain the International Copyright Acts, and to explain the Acts relating to copyright engravings. An Act for amending the law relat- ing to copyright in works of the fine arts, and for repressing the commission of fraud in the produc- tion and sale of such works. Sections fourteen, seventeen, and eighteen. Sections one to five, both inclu- sive, and sections eight and eleven. So much of section twelve as incor- porates any en- actment repealed by this Act. ORDER IN COUNCIL. At the Court at Windsor, the 28th day of November, 1887. Present, The QUEEN'S Most Excellent Majesty, Lord President, Lord Stanley of Preston, Secretary Sir Henry Holland, Bart. WHEREAS the Convention of which an English translation is set out in the First Schedule to this Order has been concluded between her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the foreign countries named in this Order, with respect to the protection to be given by way of copyright to the authors of literary and artistic works : And whereas the ratifications of the said Convention were ex- changed on the fifth day of September one thousand eight hundred and eighty-seven, between Her Majesty the Queen and the Govern- ments of the foreign countries following, that is to say : Belgium ; France ; Germany ; Hayti ; Italy ; Spain ; Switzer- land ; Tunis : 21 322 THE QUESTION OF COPYRIGHT. And whereas Her Majesty in Council is satisfied that the foreign countries named in this Order have made such provisions as it appears to Her Majesty expedient to require for the protection of authors of works first produced in Her Majesty's dominions : Now, therefore, Her Majesty, by and with the advice of her Privy Council, and by virtue of the authority committed to Her by the International Copyright Acts, 1844 to 1886, doth order ; and it is hereby ordered, as follows : 1. The Convention as set forth in the First Schedule to this Order, shall, as from the commencement of this Order, have full effect throughout Her Majesty's dominions, and all persons are en- joined to observe the same. 2. This Order shall extend to the foreign countries following, that is to say : Belgium ; France ; Germany ; Hayti ; Italy ; Spain ; Switzerland ; Tunis ; and the above countries are in this Order referred to as the foreign countries of the Copyright Union, and those foreign countries, together with Her Majesty's dominions, are in this Order referred to as the countries of the Copyright Union. 3. The author of a literary or artistic work which, on or after the commencement of this Order, is first produced in one of the foreign countries of the Copyright Union shall, subject as in this Order and in the International Copyright Acts, 1844 to 1886, mentioned, have as respects that work throughout Her Majesty's dominions, the same right of copyright, including any right capable of being conferred by an Order in Council under section two or section five of the International Copyright Act, 1844, or under any other enactment, as if the work had been first produced in the United Kingdom, and shall have such right during the same period ; Provided, that the author of a literary or artistic work shall not have any greater right or longer term of copyright therein, than that which he enjoys' in the country in which the work is first produced. The author of any literary or artistic work first produced before the commencement of this Order shall have the rights and remedies to which he is entitled under section six of the International Copy- right Act, 1886. 4. The rights conferred by the International Copyright Acts, 1844 to 1886, shall, in the case of a literary or artistic work first produced in one of the foreign countries of the Copyright Union by an author who is not a subject or citizen of any of the said foreign countries, be limited as follows, that is to say, the author shall not THE BRITISH ACT OF 1 886. 323 be entitled to take legal proceedings in Her Majesty's dominions for protecting any copyright in such work, but the publisher of such work shall, for the purpose of any legal proceedings in Her Majesty's dominions for protecting any copyright in such work, be deemed to be entitled to such copyright as if he were the author, but without prejudice to the rights of such author and publisher as between themselves. 5. A literary or artistic work first produced simultaneously in two or more countries of the Copyright Union shall be deemed for the purpose of copyright to have been first produced in that one of those countries in which the term of copyright in the work is shortest. 6. Section six of the International Copyright Act, 1852, shall not apply to any dramatic piece to which protection is extended by virtue of this Order. 7. The Orders mentioned in the Second Schedule to this Order are hereby revoked ; Provided that neither such revocation, nor anything else in this Order, shall prejudicially affect any right acquired or accrued before the commencement of this Order, by virtue of any Order hereby re- voked, and any person entitled to such right sliall continue entitled thereto, and to the remedies for the same, in like manner as if this Order had not been made. S. This Order shall be construed as if it formed part of the Inter- national Copyright Act, 1886. g. This Order shall come into operation on the sixth day of Decem- ber, one thousand eight hundred and eighty-seven, which day is in this Order referred to as the commencement of this Order. And the Lords Commissioners of Her Majesty's Treasury are to give the necessary orders herein accordingly. C. L. Peel, XVI. SUMMARY OF THE REPORT OF THE INTERNATIONAL COPYRIGHT CON- VENTION OF SOUTH AMERICA, HELD AT MONTEVIDEO, JANUARY II, 1889. The Congress held at Montevideo for the revision of international laws came to some important' de- cisions regarding international copyright. The seven states represented were the Argentine Re- public, Bolivia, Brazil, Chili, Paraguay, Peru, and Uruguay. In the main the articles of agreement closely followed the provisions of the Berne Con- ference of 1886. We briefly summarize a few im- portant differences : 1. The South American treaty secures its benefits to all authors who have published a work in one of the contracting states, without regard to his nationality. The Convention of Berne only protects authors born in one of the contracting countries. It modifies this rule by protecting the publisher of a work issued in one of the countries of the Union, although the author is an alien. The pro- tection to the work is the same, but it is the publisher who profits by it. 2. In South America the rights for translations are exactly the same as the right of the author in the original work, whereas the Berne Conference only assures the exclusive right of translation up to the expiration of ten years from the date of publication of the original work in one of the countries of the Union. ,^3. In the enumeration of what is understood under the expression THE MONTEVIDEO CONVENTION. 325 "literary and artistic works," photographs and choregraphic works are specifically mentioned, whereas the Berne Conference merely makes a general mention of processes of reproduction. 4. The treaty of South America contains no clause relating to pub- lic performances or representations of protected works, whereas the Berne Conference decrees that such works shall not be publicly per- formed or reprinted if the author has declared on the title-page that he forbids public performances, which declaration makes such per- formances a violation of original copyright. 5. The South American treaty may be extended to other nations which did not take part in the Congress. The Berne Convention guarantees admission to such countries as shall assure within their jurisdiction the protection which is the object of the Convention. 6. The South American treaty says nothing of the formalities of registering and depositing works to be protected. According to the Berne Convention these formalities can only be exacted in the country of origin and according to the laws enacted by that country. 7. The South American treaty makes no mention of works pub- lished before its going into force, whereas the Berne Convention has made provision in a special protocol for works published before its decisions went into force. It may be of interest to note that these contracting South Ameri- can countries represent a total population of 24,800,000. The treaty embodying these points was signed by the delegates of the seven states, and it is to go into operation between such states as may ratify it as soon as ratified by them, no time being specified for such ratification. ' ' The above summary is based upon the report of the Publishers' Weekly — Editor. XVII. HENRY CLAY'S REPORT IN FAVOR OF INTERNATIONAL COPYRIGHT. During the second session of the Twenty-fourth Congress, on February i6, 1837, Henry Clay in the Senate made the following report, submitted with Senate bill No. 223 : The select committee to which was referred the address of certain British, and the petition of certain American, authors, has, according to order, had the same under consideration, and begs leave now to report : 1. That, by the act of Congress of 1831, being the law now in force regulating copyrights, the benefits of the act are restricted to citizens or residents of the United States ; so that no foreigner, residing abroad, can secure a copyright in the United States for any work of which he is the author, however important or valuable it may be. The object of the address and petition, therefore, is to remove this restriction as to British authors, and to allow them to enjoy the benefits of our law. 2. That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius is incon- testable ; and that this property should be protected HENRY clay's REPORT. 327 as effectually as any other property is, by law, fol- lows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labors for the means of sub- sistence ; and are frequently, from the nature of their pursuits, or the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law. 3. It being established that literary property is entitled to legal protection, it results that this pro- tection ought to be afforded wherever the property is situated. A British merchant brings or trans- mits to the United States a bale of merchandise, and the moment it comes within the jurisdiction of our laws, they throw around it effectual security. But if the work of a British author is brought to the United States, it may be appropriated by any resi- dent here, and republished without any compensa- tion whatever being made to the author. We should be all shocked if the law tolerated the least invasion of the rights of property in the case of the merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws. 4. The committee thinks that this distinction in the condition of the two descriptions of property is not just, and that it ought to be remedied by some 328 ^ THE QUESTION OF COPYRIGHT. safe and cautious amendment of the law. Already the principle has been adopted, in the patent laws, of extending their benefits to foreign inventions or improvements. It is but carrying out the same principle to extend the benefits of our copyright laws to foreign authors. In relation to the subjects of Great Britain and France, it will be but a measure of reciprocal justice ; for, in both of those countries, our authors may enjoy that protection of their laws for literary property which is denied to their sub- jects here. 5. Entertaining these views, the committee has been anxious to devise some measure which, without too great a disturbance of interests, or affecting too seriously arrangements which have grown out of the present state of things, may, without hazard, be subjected to the test of practical experience. Of the works which have heretofore issued from the foreign press, many have been already republished in the United States; others are in a process of republication, and some probably have been stereo- typed. A copyright law which should embrace any of these works might injuriously affect American publishers, and lead to collision and litigation between them and foreign authors. 6. Acting, then, on the principles of prudence and caution, by which the committee has thought it best to be governed, the bill which the committee intends proposing provides that the protection which it secures shall extend to those works only which shall be published after its passage. It is also lim- ited to the subjects of Great Britain and France ; HENRY clay's REPORT. 329 among other reasons, " because the committee has information that, by their laws, American authors can obtain there protection for their productions, but they have no information that such is the case in any other foreign country. But, in principle, the committee perceives no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it. The bill also provides that an American edition of the foreign work, for which an American copyright has been obtained, shall be published within reasonable time. 7. If the bill should pass, its operation in this country would be to leave the public, without any charge for copyright, in the undisturbed possession of all scientific and literary works published prior to its passage — in other words, the great mass of the science and literature of the world ; and to en- title the British and French author only to the benefit of copyright in respect to works which may be published subsequent to the passage of the law. 8. The committee cannot anticipate any reason- able or just objection to a measure thus guarded and restricted. It may, indeed, be contended and it is possible that the new work, when charged with the expense incident to the copyright, may come into the hands of the purchaser at a small advance beyond what would be its price if there were no such charge ; but this is by no means certain. It is, on the contrary, highly probable that, when the American publisher has adequate time to issue carefully an edition of the foreign work, without 330 THE QUESTION OF COPYRIGHT. incurring the extraordinary expense which he now has to sustain to make a hurried publication of it, and to guard himself against dangerous competi- tion, he will be able to bring it into the market as cheaply as if the bill were not to pass. But, if that should not prove to be the case, and if the Ameri- can reader should have to pay a few cents to com- pensate the author for composing a work by which he is instructed and profited, would it not be just in itself ? Has any reader a right to the use, with- out remuneration, of intellectual productions which have not yet been brought into existence, but lie buried in the mind of genius ? The committee thinks not ; and its members believe that no Amer- ican citizen would not feel it quite as unjust to appropriate to himself their future publications, without any consideration being paid to their for- eign proprietors, as he would to take the bale of merchandise, in the case stated, without paying for it ; and he would the more readily make this trifling contribution, when it secured to him, instead of the imperfect and slovenly book now often issued, a neat and valuable work, worthy of preservation. 9. With respect to the constitutional power to pass the proposed bill, the committee entertains no doubt, and Congress, as before stated, has acted on it. The Constitution authorizes Congress " to pro- mote the progress of science and useful arts, by securing, for limited times, to authors and invent- ors, the exclusive right to their respective writings and discoveries." There is no limitation of the power to natives or residents of this country. Such HENRY clay's REPORT. 331 a limitation would have been hostile to the object of the power granted. That object was to promote the progress of science and useful arts. They be- long to no particular country, but to mankind gen- erally. And it cannot be doubted that the stimulus which it was intended to give to mind and genius — in other words, the promotion of the progress of science and the arts — will be increased by the mo- tives which the bill offers to the inhabitants of Great Britain and France. 10. The committee concludes by asking leave to introduce the bill which accompanies this report. The following bill accompanied the report : A Bill to amend the act entitled "An Act to amend the several acts respecting copyright." Be it enacted, etc.. That the provisions of the act to amend the several acts respecting copyrights, which was passed on the third day of February, eighteen hundred and thirty-one, shall be extended to, and the benefits thereof may be enjoyed by, any subject or resident of the United Kingdom of Great Britain and Ireland, or of France, in the same manner as if they were citizens or residents of the United States, upon depositing a printed copy of the title of the book, or other work for which a copyright is desired, in the clerk's office of the district court of any district in the United States, and complying with the other requirements of the said act : Provided, That this act shall not apply to any of the works enumerated in the aforesaid act, which shall have been etched or engraved, or printed and published, prior to the passage of this 332 THE QUESTION OF COPYRIGHT. act : And provided, also, That, unless an edition of the work for which it is intended to secure the copyright shall be printed and published in the United States simultaneously with its issue in the foreign country, or within one month after deposit- ing as aforesaid the title thereof in the clerk's office of the district court, the benefits of copyright here- by allowed shall not be enjoyed as to such work. XVIII. CHEAP BOOKS AND GOOD BOOKS. By Brander Matthews. Mr. Lowell has told us that " there is one thing better than a cheap book, and that is a book honestly- come by." And Mr. Curtis has put the same thought quite as aptly : " Cheap books are good things, but cheapening the public conscience is a very bad thing." In these sayings, as in a nutshell, we have the ethics of international copyright. But on this side of the question Dr. Van Dyke, with a felicity and a force I cannot hope to rival, has said all that need be said ; and I hasten at once to a considera- tion of the assertion that the effect of the granting of International Copyright will be to raise the price of books. There are still a few who declare that the People must have cheap books, and that therefore the Peo- ple will not permit the passage of any bill for Inter- national Copyright. Within a few days we have seen declarations like this ascribed to Members of Congress and to Senators of the United States. It is our duty always to acknowledge the good faith of our disputant ; and we must assume, then, that these Representatives and these Senators are sincere in holding that the absence of International Copy- 334 THE QUESTION OF COPYRIGHT. right gives us cheap books in the United States. I am inclined to think that not only the opponents of copyright reform, but even many of its advocates, believe that the existing lawlessness gives us cheaper books than we should have if the rights of foreign authors were legally guarded. It is true, no doubt, that, in consequence of the competing reprints of rival pirates, some few books, mostly in a single department of literature, and generally of inferior literary quality, are to be bought here for very little money. But, with these infrequent exceptions, books are not now cheaper in America because there is free stealing from the foreigner. It may be said, further, that the absence of International Copyright really retards the cheapening of good books in this country. This may sound like a paradox, but I shall try to prove its exact truth. The books which are made cheaper by piracy are nearly all English novels. The so-called libraries — the Seaside Library, for in- stance, the Franklin Square Library, and their fel- lows — contain nearly all the books which are cheap because they are not paid for. I do not mean here to suggest that all the books reprinted in all these libraries are pirated ; but piracy is the primary cause of their low prices. These libraries are devoted almost wholly to fiction ; by actual count of their catalogues, nine volumes out of ten are novels. To profit by the provisions of the postal laws, these Hbraries are registered as periodicals ; and they ap- pear at regular intervals, once, twice, and even three times a week. A library which issues but one book CHEAP BOOKS AND GOOD BOOKS. 335 a week must publish fifty-two books a year ; after allowing for the occasional American book of which the copyright has run out, and for the occasional foreign biography or history which seems popular enough to fit it for the uneducated audience to which these series appeal — after making these allow- ances, fully forty of the fifty-two annual numbers of any one of these libraries must be English novels. Now, there are not forty novels published in Great Britain in any one year which are worth reprinting in the United States. I do not think there are twenty — I doubt if there are ten. Yet in one of the cheap libraries, issued three times a week, more than a hundred English novels are now published every year. And this is at a time when there is no great nov- elist alive in England, and when the English novel is distinctly inferior to the novel of America, of Russia, and of France. But these English novels are almost the only books which are cheapened by piracy. These are the books which the women of America, allured by the premium of cheapness, are now reading almost exclusively, to the neglect of native writers. There is a resulting deterioration of the public taste for good literature ; and there is a resulting tendency to the adoption of English social standards. It is not wholesome, nor a good augury for the future of the American people, that the books easiest to get, and therefore most widely read, should be written wholly by foreigners, and chieHy by Englishmen, who cannot help accepting and describing the surviving results of feudalism 336 THE QUESTION OF COPYRIGHT. and the social inequalities we tried to do away with one hundred and twelve years ago. " Society is a strong solution of books," Dr. Holmes has told us; " it draws the virtue out of what is best worth read- ing, as hot water draws the strength of tea-leaves." While the privilege of piracy endures, American so- ciety is drawing the vice out of what is least worth reading, the machine-made tales of the inferior British novelists of the present day. Lest this opinion as to the demerits of the mass of the English novels now so freely reprinted here may seem over-severe, attention is drawn to a pass- age from Mr. Frederic Harrison's incisive essay on the Choice of Books — one of the invigorating vol- umes of essays which England has sent us of late years : " But assuredly black night will quickly cover the vast bulk of modern fiction — work as perishable as the generations whose idleness it has amused. It belongs not to the great creations of the world. Beside them it is flat and poor. Such facts in human nature as it reveals are trivial and special in them- selves, and for the most part abnormal and unwhole- some. I stand beside the ceaseless flow of this miscellaneous torrent as one stands watching the turbid rush of the Thames at London Bridge, won- dering whence it all comes, whither it all goes, what can be done with it, and what may be its ultimate function in the order of providence. To a reader who would nourish his taste on the boundless har- vests of the poetry of mankind, this sewage outfall of to-day offers as little' in creative as in moral value. Lurid and irregular streaks of imagination, extrava- CHEAP BOOKS AND GOOD BOOKS. 337 gance of plot and incident, petty and mean subjects of study, forced and unnatural situations, morbid pathology of crime, dull copying of the dullest com- monplace, melodramatic hurly-burly, form the cer- tain evidence of an art that is exhausted, produced by men and women to whom it is become a mere trade, in an age wherein change and excitement have corrupted the power of pure enjoyment." It may surprise some readers to be told that almost the only books which are cheaper in America owing to the absence of International Copyright are English novels. But that this is the fact I have convinced myself by a careful examination of the statistics of the American book-trade. Pirated books are nearly always issued in a series or library ; and, as I have said, nine numbers in ten on the list of these libraries are fiction. The tenth number may be Mr. Froude's Lz/e of Carlyle, for instance, or Mr. Justin McCarthy's History of Our Own Times, both of them books worth reading and worth keeping, but in this flimsy form almost im- possible either to read or to keep, because of the shabbiness of the type, the press-work, and the paper. It is not sound economy to spare the pocket and spoil the eyes. It is not sound economy to pay eighty cents for four evil and awkward pamph- lets comprising a book which can be bought for a dollar and a half, decently bound and decently printed on decent paper — a pleasure to read now and a treasure to transmit to those who come after us. A consideration of the present condition and an- nual statistics of the American book-trade will show 338 THE QUESTION OF COPYRIGHT. that the legal right to pirate is not now utilized by most American publishers, and that those who are still privateers seek their booty chiefly, if not solely, among books of one exceptional class. From the figures published annually in The Publishers Weekly, the following table has been prepared to show the different kinds of books published in the United States during the past five years.' (The classifica- tion is not quite that of the Weekly, but has been modified slightly by condensation.) Education and lan^age Law Science (medical, physical, mathematical, politi- cal, and social) Theology, religion, mental and moral philosophy. History Literary^ history .and miscellany, biography and memoirs, description and travel, humor and satire Poetry and the drama Juveniles Fiction Et cetera Total 1882 1883 1884 1885 22 X 197 227 225 261 397 455 431 406 407 5" 443 3'*7 39° 399 4to 118 J 19 "S 137 5S9 S2I 529 501 182 184 222 171 278 331 ■^'» ,88 7C7 670 943 934 333 265 329 330 3472 3481 408S 4020 1886 275 469 499 395 1S2 719 220 458 1080 379 4676 Taking up these classes in turn, we shall see what will be the effect on each of the passage of the bill of the American Copyright League. On the first class, education .and language, there would be no effect at all, as the text-books now used in Amer- ican schools were written by Americans and are covered by copyright : it is hardly an exaggeration to say that the American school-boy never sees a book of foreign authorship in school-hours ; I ' This essay was first issued in 1887. CHEAP BOOKS AND GOOD BOOKS. 339 know that I never did until after I had entered college, and then very infrequently. Fortunately for the future of our country, young Americans are brought up on American books. The founda- tion of American education is the native Webster's Spelling-book. In some respects the making of school-books is the most important branch of the publishing business, and the passage of the Copy- right Bill would not influence it in any way ; Amer- ican school-books would be neither dearer nor cheaper. In the second class, law, are included a tenth of the books published in the United States last year, and from the inexorable circumstances of the case most of these books are of American authorship and are already protected by copyright. All reports and all treatises on practice and on constitutional law, etc., are of necessity national. Now and again an English treatise of marked merit may be edited for the use of American lawyers with referertces to American cases, but this is infrequent ; and not often would the price of any work needed by the American lawyer be increased by the passage of the Copyright Bill. Of books in the third and fourth classes — science and theology — very few indeed are ever pirated. Once in every three or four years there appears, in England, or France, or Germany, a book like Canon Farrar's Life of Christ, the American price of which is lowered by rival reprints. A large majority of books of science and theology pubhshed in America are written by American 340 THE QUESTION OF COPYRIGHT. authors; and in general the minority by foreign authors are published here by an arrangement with the foreign author tantamount to copyright. Al- though purely ethical considerations ought to have more weight with readers of books of this class than with those of any other, yet it would be in- frequently that the price of any book of this class would be raised by giving to the literary laborer who made it the right to collect the hire of which he is worthy. Taken together, the next three classes on the list — history ; — literary history and miscellany, biog- raphy and memoirs, description and travel, humor and satire ; — and poetry and the drama — include nearly all of what used to be called Belles Lettres (except fiction), and they comprise nearly a quarter of the books published in America. In these and in the preceding classes most of the books are of American authorship, and most of those of foreign authorship are published at just the same price as though they were by native writers. It would probably surprise most readers who imagine that the absence of International Copyright gives us many inexpensive histories and biographies, and books of travel and poems, if they were to con- sider carefully the catalogues of the paper-covered collections which furnish forth our cheap literature. Among the chief of these collections are the Frank- lin Square Library and Harper's Handy Series. In 1886 there were issued fifty-four numbers of the Franklin Square Library, one of which was by an American. Of the remaining fifty-three, forty-six CHEAP BOOKS AND GOOD BOOKS. 341 were fiction, and only seven numbers could be clas- sified as history, biography, travels, or the drama — only seven of these books in one year, and they were less than one-seventh of the books contained in this collection. In the same year there were sixty-two numbers in Harper's Handy Series. De- ducting four by American authors, we have fifty- eight books issued in cheap form owing to the absence of International Copyright. Of these fifty- eight books fifty-two were fiction, and only six belonged in other branches of Belles Lettres ; only six of these books in one year, and they less than one-ninth of the series. In these two cheap collec- tions, then, there were published in 1886 one hun- dred and eleven books of foreign authorship, and of these all but thirteen were novels or stories. Not one of these thirteen books was a work of the first rank which a man might regret missing. It may as well be admitted frankly that these thirteen books would probably not have been published quite so cheaply had there been International Copyright ; but it may be doubted whether, if that were the case, the cause of literature and education in the United States would have been any the worse. In the class of books for the young there are possibly more works of foreign authorship sold than in any other class that we have hitherto con- sidered, but in most cases they are not sold at lower prices than American books of the same character. Indeed, I question whether many Eng- lish or French books for the young are sold at all in America. At bottom the American boy is harder 342 THE QUESTION OF COPYRIGHT. to please and more particular than the American woman ; he likes his fiction home-made, and he has small stomach for imported stories about the younger son of a duke. He has a wholesomer taste for native work. No English juvenile magazine is sold in the United States, although several Ameri- can juvenile magazines are sold in Great Britain. We export books for the young, while we import them only to a comparatively slight extent. I come now to the one class of books the price of which would be increased by the granting of Inter- national Copyright. This is the large and impor- tant class of fiction. Of course, American novels would be no dearer; and probably translations from the French, German, Italian, Spanish, and Rus- sian would not vary greatly in price. But English novels would not be sold for ten or fifteen cents each. We should not see five or ten rival reprints of a single story by the most popular English novelists. There would be but a single edition of the latest novels of the leading British story-tellers, and this would be offered at whatsoever price the authorized publisher might choose to ask — some- times much, generally little. English fiction would no longer cost less than American fiction. The premium of cheapness, which now serves to make the American public take imported novels instead of native wares, would be removed; and with it would be removed the demoralizing influence on Americans of a constant diet of English fiction. That American men and women should read the best that the better EngHsh novelists have to offer CHEAP BOOKS AND GOOD BOOKS. 343 US is most desirable ; that our laws should encour- age the reading of English stories, good and bad together, and the bad, of course, in enormous ma- jority, is obviously improper and unwise. The evil effect of this unfortunate state of things Mark Twain has most graphically depicted. He asks if it is an advantage to us; the people of the United States, to get all kinds of cheap alien books devoured " in these proportions : an ounce of whole- some literature to a hundred tons of noxious ? " " Is this an advantage to us ? " he inquires fur- ther ; and he answers his own question thus : " It certainly is, if poison is an advantage to a person ; or if to teach one thing at the hearth-stone, the po- litical hustings, and in a nation's press, and teach the opposite in the books the nation reads is prof- itable ; or, in other words, if to hold up a national standard for admiration and emulation half of each day, and a foreign standard the other half, is profitable. The most effective way to train an impressible young mind and establish for all time its standards of fine and vulgar, right and wrong, and good and bad, is through the imagination ; and the most insidious manipulator of the imagination is the felicitously written romance. The statistics of any public library will show that of every hundred books read by our people about seventy are novels — and nine-tenths of them foreign ones. They fill the imagination with an unhealthy fascination for foreign life, with its dukes and earls and kings, its fuss and feathers, its graceful immoralities, its sugar-coated injustice and oppressions ; and this 344 THE QUESTION OF COPYRIGHT. fascination breeds a. more or less pronounced dis- satisfaction with our country and form of govern- ment, and contempt for our republican common- places and simplicities ; it also breathes longings for something ' better,' which presently crop out in diseased shams and imitations of that ideal foi-eign life. Hence the dude. Thus we have this curious spectacle : American statesmen glorifying Ameri- can nationality, teaching it, preaching it, urging it, building it up — with their mouths ; and undermin- ing it and pulling it down with their acts. This is to employ an Indian nurse to suckle your child, and expect it not to drink in the Indian nature with the milk. It is to go Christian-missionarying with infidel tracts in your hands. Our average young person reads scarcely anything but novels ; the citizenship and morals and predilections of the rising generation of America are largely under train- ing by foreign teachers. This condition of things is what the American statesmen think it wise to protect and preserve — by refusing International Copyright, which would bring the national teacher to the front and push the foreign teacher tp the rear. We do get cheap books through the absence of International Copyright ; and any who will con- sider the matter thoughtfully will arrive at the con- clusion that these cheap books are the costliest purchase that ever a nation made." International Copyright will perhaps increase the cost of such English novels as may be written in the future ; but it is not retroactive ; it cannot affect the past ; it will not alter the price of Shake- CHEAP BOOKS AND GOOD BOOKS. 345 speare or of Scott, of Macaulay or of Thackeray. It will not make any American author ask more for his book, if, indeed, by expanding his market, it does not tempt him to lower his terms, seeking a wider sale and a smaller profit. Emerson and Ir- ving, Longfellow and Hawthorne, will be as easily accessible hereafter as they are to-day. The books which are cheap now will always be cheap ; and with the. removal of the sickly flood of stolen Eng- lish fiction there will come an opportunity for the American publisher to issue good books at low prices. Here we come to the special, point of this paper : the cheapest books to be bought to-day in the United States are mostly inferior stories by contem- porary English novelists, while the cheapest books to be bought to-day in England, in France, and in Germany are the best books by the best authors of all times. Those who declaim against International Copyright because they do not wish to deprive the poor boy of the cheap book he may study by the firelight after his hard day's work, would perhaps be surprised to be told that of the " Hundred Best Books " (of which we lately had so many lists), of the books best fitted to form character and to make a man, very few indeed, not more than half a dozen, are to be found in any of the cheap libraries which flourish because of the absence of copyright. Most of these great works are old and consecrated by time ; they are nearly all free to be printed by whoso will. In Sir John Lubbock's original list of a hun- dred best authors only two were American, and only 346 THE QUESTION OF COPYRIGHT. twelve were recent Englishmen whose works are still protected by English copyright. Eighty-six out of the hundred were classics of ancient and modern literature — Greek and Latin, Italian and French, German and English. Now, in Germany, in France, and in England, there have been many efforts of late years to supply very cheap editions of these classics at a price with- in the means of the poorest student. In the United States no such effort has been made ; nor is it likely to be made as long as the market for cheap books is supplied by inferior foreign fiction, which not only usurps the place of better literature, but spoils the appetite for it. The cheap books to be bought in England, in France, and in Germany are stimu- lant and invigorating, mentally and morally ; a man is better for reading them ; he is richer and stronger, and more fit for the struggle of life. The cheap books to be bought in the United States are only too often the trivial trash of the ladies who call themselves "Ouida"and "The Duchess." How much these may nerve a man or a woman for the realities of existence, how much the wisdom to be got from them may arm us for the stern battle of life, I cannot say. A consideration of the conditions of book-pub- lishing in Great Britain, in France, and in the Ger- man Empire is not without interest in itself ; and it may serve further to show that Americans do not enjoy a monopoly of cheap books. The British are book-borrowers, and not book- buyers ; they are accustomed to hire their freshest CHEAP BOOKS AND GOOD BOOKS. 347 reading matter from the circulating library. I re- member hearing Professor Sylvester, the eminent English mathematician, who was until recently a member of the faculty of Johns Hopkins Univer- sity — I remember hearing him express the surprise he felt on his 6rst arrival in this country, when he was staying with Professor Pearce in Cambridge, and happened to hear two of the ladies of the family remark that they had just been in to Boston to buy a book. "To buy a book?" repeated Professor Sylvester ; " why, in England nobody buys a book ! " Perhaps this is an over-statement of the case ; but it is true that the British book-trade is in an un- healthy condition, and that the publishers and the public are at opposite sides of a vicious circle — the people refuse to purchase because new books are dear, and the publishers ask a high price because there are but few buyers. In England a novel, for instance, is generally published in three volumes at half a guinea a vol- ume — say seven dollars and a half for a single story. At this prohibitive price the publisher can hope for no private purchaser, and he relies wholly on the demand from the circulating libraries, which have to meet the wishes of their subscribers, and to which the volumes are sold at a heavy discount. Not only novels, but travels, histories, and biographies are usually brought out in England at absurdly exaggerated ■ prices. If the book succeed, if it be really deserving of a wider sale, popular editions at lower figures soon follow. It is only the first edi- tions, intended solely for the circulating libraries, 348 THE QUESTION OF COPYRIGHT. which are disproportionately dear. Six months or a year after a novel first appears in three volumes, it will probably be republished in a single volume at a price varying from three shillings and sixpence to six shillings — say, ninety cents to a dollar and a half. Often it also appears a little later in a rail- way edition at two shillings — fifty cents. The re- duction in the price of histories and biographies is not so large; but second-hand copies in excellent condition can be had at a tithe of the original cost from the circulating libraries, which sell off their surplus stock as soon as the pressure of the first demand is relieved. This system of publishing seems cumbrous and top-heavy. It is peculiar to Great Britain. It has never been adopted by any other nation. It could exist only in an island, or in a country with a com- pact population having both leisure and means. But apparently it is not altogether unsatisfactory to the English, and it does not make books as dear as at first glance we might suppose. The brand-new book, smoking-hot from the press, is intended to be borrowed and not bought ; but commonly, after a year or two, it can be had at a moderate price. Professor Lounsbury, of the Sheffield Scientific School at Yale, after an experience of many years, has recorded it as his deliberate opinion that, in the long run, English books are cheaper than American books. Of late there have been many efforts made in England to create and to satisfy a popular desire for good books at low prices. There are even signs CHEAP BOOKS AND GOOD BOOKS. 349 that the circulating library system is not as secure as it has seemed, and that the British may become book-buyers instead of book-borrowers. A Bristol publisher having sold several hundred thousand copies of the late Hugh Conway's Called Back at a shilling (twenty-five cents), has continued the series with original stories by Mr. Wilkie Collins, Mr. Walter Besant, Mr. Andrew Lang, and others. All of Disraeli's novels are now for sale at a shilling each ; and all of Thackeray's writings are being reissued at a shilling a volume by his own publish- ers, who still own the copyrights. A complete edi- tion of Carlyle's works has just been begun, to be sold at the same low price — twenty-five cents. And it is to be noted that these sets of Thackeray and Carlyle are not ill-made and flimsy pamphlets, badly printed with worn type on poor paper; they are honest books, firmly printed on good paper and substantially bound in cloth. Mr. John Morley's admirable series of English Men of Letters is now in course of republication at a shilling for each biography. And a shilling is the price asked for each of the well-made, neatly bound, and carefully prefaced volumes of Professor Henry Morley's Universal Library, which is in- tended to contain the masterpieces of the master minds of all countries and all ages. In this most excellently edited series there have already ap- peared, month by month, the chief works of Ho- mer, Virgil, Dante, Machiavelli, Rabelais, Bacon, Ben Jonson, Cervantes, Molifere, De Foe, Locke, Dr. Johnson, Goldsmith, Goethe, and Coleridge. 3 so THE QUESTION OF COPYRIGHT. Professor Henry Morley is also the editor of an- other series, perhaps even more iniportant, because the price is lower and the issue more frequent. This is Cassell's National Library, in weekly vol- umes at threepence each. For six cents a week a man may buy a solid little tome of about two hun- dred pages, containing Franklin's Autobiography, Walton's Complete Angler, Byron's Childe Harold, and the like. Nothing at once as cheap in price and as good in quality as this National Library has ever been brought out in America. Crossing the Channel to France, we find the con- ditions of publishing very different and far more healthy. There was a time once when books in France were expensive, and when authors and pub- lishers alike were content with a small sale and an apparently large profit. The late'Michel-Ldvy be- lieved that "cheap books are a necessity, and a necessity which need bring, moreover, no loss to either authors or publishers." ' He converted cer- tain of the leading French writers, to his views, and he revolutionized the methods of French publish- ing. The theory of Michel-L^vy, that the low price of one book will tempt the reader and create a de- sire for another book, was solidly sustained by the result of his experiment. Thanks to him and to those who followed his example, France is now the country where books are the cheapest and where authors are the best paid. Dignified historical ' An account of Michel- Levy's reform may be found in Mr. Matthew Arnold's acute paper on " Copyright " in his volume of Irish Essays. CHEAP BOOKS AND GOOD BOOKS. 351 works generally appear in portly tomes at seven francs and a half each — say, a dollar and a half (the price in America for a volume of the same impor- tance would probably vary from two dollars and a" half to five dollars). These volumes at seven francs and a half each are relatively few, as the enormous majority of French books, poems, novels, biogra- phies, essays, and so forth are of the size called the " format Charpentier," and are sold for three francs and a half each — say, seventy cents. Cheap as these French books are when new, they are often made even cheaper still as their popularity broadens. In imitation of the Michel-L^vy collec- tion, many publishers have series which they sell for one franc a volume — twenty cents — for a seemly and shapely tome containing a complete copyright book, by an author of wide repute. Even lower priced, however, is a later series, the Bibliotkkque Nationale, founded twenty-five years ago, now ex- tending to several hundred numbers, and containing not only the French classics but also translations of nearly all the classics of other literatures. The tidy little tomes of this series are sold in stitched paper covers at twenty-five centimes each — five cents — and in cloth bindings for nine cents each. Inexpensive as is this Bibliothique Nationale, it has now a new rival — the Nouvelle Bibliothique Pofulaire — in which the single numbers are sold for two cents each. I be- lieve that nothing cheaper than this has ever been attempted anywhere. Besides the consecrated mas- terpieces of literature, the books of an impreg- nable reputation, which ought to furnish forth the 352 THE QUESTION OF COPYRIGHT. bulk of any collection making an appeal to the very widest circle of readers, the conductor of the Nou- velle Bibliotheque Populaire is wisely selecting trans- lations into French of the best books of contempo- rary authors of other nations. Thus can a pleased American discover on the catalogue the names of Poe, Irving, Longfellow, and Mr. Bret Harte ; whether these authors are as pleased to see their works taken without money and without price is another question ! Turning from France to Germany, we find no great difference in the conditions of publishing, although the Germans cannot make their new books quite as cheap as can the French, since their market is not so large. German books, in the department which at college we used to call Belles Lettres, must be consumed in the home market ; there is no fierce demand for export. But French fiction and French criticism are interesting and entertaining throughout the world. A German novel must rely for its read- ers on the Fatherland and on those who speak the mother-tongue ; while French is still the language of courts and of culture, and a French novel may be read with as much avidity in Berlin and Vienna, in London and New York, as in Paris itself. Whatever may be the price of the new novel in Germany, and however insufificient may be its sale, the Germans are not behind the French in their cheap editions of the great books of the world. The successors of the house which issued Goethe's writings now publish the Cotta'scke Bibliothek der Weltliteratur, in which the works of Goethe, Schil- CHEAP BOOKS AND GOOD BOOKS. 353 ler, Lessing, Shakespeare, Molifere, Calderon, Dante, and their fellows appear in solid volumes, substan- tially bound, and sold at one mark each — twenty- five cents. One mark is also the price asked for any volume of Das Wissen der Gegenwart, a collec- tion of new books, expressly prepared, well printed, well bound, and most elaborately illustrated. The volumes of this series are written by experts, and they are intended to form a sort of cyclopaedia of the results of the latest researches in science and history. Nor are the Germans lacking in a library of the ancient and modern classics at a still lower price. I believe that it was Herr Reclam's Universal Biblio- thek which suggested the French Bibliothique Na- tionale and the English " National Library." The single numbers of this series cost each twenty pfennige — say, five cents ; and at this price may be had all the German classics, as well as translations of the best writings in other languages. Alongside the works of Schiller and Sophocles, of Shakespeare and Sheridan, the American finds translations of Cooper, Longfellow, Mark Twain, Mrs. Stowe, Mr. Aldrich, and Mr. Bret Harte — of course we cannot expect Germany to protect the rights of American authors until America protects the rights of German authors. The success of this cheap series has brought out a rival still cheaper — Meyer's Volksbilcher at ten pfennige a volume — say, two cents and a half for a complete copy of a masterpiece. In this survey of the conditions of publishing in England, France, and Germany, 1 have sought to 23 354 THE QUESTION OF COPYRIGHT. show that what might seem, at first sight, to be a paradox, is only the exact truth. In America the cheapest books are not good books, for the most part; certainly they are not the best books. In Europe the best books are the cheapest. That this un- fortunate state of affairs in this country is the result of the absence of International Copyright, and the inevitable instability of the book trade, I maintain ; and I assert also that the consequences of the present unhealthy condition are injurious to the character of the American people. We now enjoy the privilege of piracy, as the dwellers on a rocky islet used to enjoy the privilege of wrecking^and we avail ourselves of this privilege only to the per- dition of our own souls. We encourage bad books and we discourage good books. And to discourage or injure or retard a good book, as it goes on its mission of making the world better, is to do an evil deed. No one has more nobly spoken of the crime of book murder than John Milton, and with a quota- tion from him I may fitly conclude : " For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are ; nay, they do preserve, as in a vial, the purest efificacy and ex- traction of that living intellect that bred them. I know they are as lively and as vigorously product- ive as those fabulous dragon's teeth : and being sown up and down may chance to spring up armed men. And yet, on the other hand, unless wariness be used, as good almost kill a man as kill a good book. Who kills' a man kills a reasonable creature, CHEAP BOOKS AND GOOD BOOKS. 355 God's image ; but he who destroys a good book kills reason itself, kills the image of God, as it were, in the eye. Many a man lives, a burden to the earth ; but a good book is the precious life-blood of a master-spirit, embalmed and treasured up on purpose to a life beyond life." New York, March 15, 1888. XIX. AN INTERNATIONAL COPYRIGHT WILL NOT INCREASE THE PRICES OF BOOKS. By Geo. Haven Putnam. One of the most frequent objections to the grant- ing of copyright to foreign authors is the impression that any such measure must materially increase the selling price of books. It is pointed out that, in the absence of a copyright, foreign works have been issued in this country at very low prices, and it is assumed that when it becomes necessary to add to the cost of production the amounts to be paid to the authors, and when the sales, now divided be- tween several competing editions, are left under the control of one publisher, the prices paid by the con- sumer will probably be materially increased. The supporters of International Copyright take the ground, on the other hand, that when the American people, who are lovers of fair play, are once convinced of the justice of the claim of authors (American and' foreign) to control their productions, and to receive compensation from all who are bene- fited by these productions, this claim will be promptly granted, whether it costs the public some- thing to do so or not. COPYRIGHT AND PRICES. 357 Those who are familiar with the business of mak- ing and selling books assert further, moreover, that a copyright measure will have the effect of lessening the price of all the better classes of books, which are of the most importance for the higher education and cultivation of the people, and of increasing the supplies of these; and that the only pubHcations which will be increased in price are the cheapest issues of foreign fiction ; and in support of this con- clusion they ask attention to the following consider- ations : First. It is in order to bear in mind that the conditions of the literature now in existence can, of course, not be affected by any copyright measure, as no such measure could be made retroactive, and there is, therefore, no foundation for the vague assertion which has occasionally, been made, that " the people are to be asked to pay more for their Macaulay and Tennyson." Second. It is to be remembered that the so-called " Libraries," which have been supplying foreign novels at fifteen and twenty cents, after exhausting the books really worth reprinting, and after includ- ing in their lists (under the necessity of a periodical issue) a large mass of indifferent and undesirable material, by no means deserving the attention of American readers, are now in great part being dis- continued, partly because of the exhaustion of re- printable material, and partly, also, because they are not profitable undertakings. One reason why these " Libraries " are proving unremunerative is unques- tionably because of a change in the taste and in the 358 THE QUESTION OF COPYRIGHT. judgment of buyers of books, who are beginning to understand that they secure better value in paying fifty cents or seventy-five for a decently printed vol- ume, that can be preserved for the use of a number of readers, than in expending fifteen or twenty cents for a flimsy quarto,' fit only to be thrown away after one reading. Third. A large number of important English and Continental works, American editions of which would prove of material service to American stu- dents and readers, it is not practicable, under the present state of things, for American publishers to undertake at all, as, in case their reprints are favora- bly received, any prospect of profit from these is promptly destroyed by the competition of rival and unauthorized editions, which secure the advantage of their literary judgment and their advertising. Such American readers as are obliged to purchase this class of works must, as a result, pay the cost of the expensive and often unsuitable foreign editions, while (as such editions cannot be adequately adver- tised) a large number of readers to whom such books would be of service are never even made aware of their existence. An immediate result of an Inter- national Copyright would be the reprinting of inex7 pensive editions, suited for the wants of a large cir- cle of impecunious buyers, of a number of European works now brought into this country only in expen- sive "limited" editions. Fourth. An International Copyright will render practicable a large number of international under- takings which cannot be ventured upon without the COPYRIGHT AND PRICES. 359 assured control of several markets. The volumes for these international series will be secured from the leading writers of the world, American, English, and Continental, and the compensation paid to these writers, together with the cost of the produc- tion of illustrations, maps, tables, etc., will be di- vided between the several editions. The lower the proportion of this first outlay to be charged to the American edition, the lower the price at which this can be furnished ; and as the publisher secures the most satisfactory returns from large sales to a wide circle, the lower the price at which it will be fur- nished. It would not be quite correct to say that these international series would be cheaper than at pres- ent, for there are as yet hardly any examples of them ; but it is the case that by means of such series (only adequately possible under International Copy- right) American readers will secure the best litera- ture of leading contemporary writers at far lower prices than can ever otherwise be practicable. Fifth. The higher prices of current English books are cited as examples of what American readers would under a copyright be compelled to pay for American editions of similar works. It is, however, easy to show that the seUing price of books de- pends,, not upon the conditions of copyright, but upon the requirements of the market. Books are first issued in England in the high-priced editions, because under the English system the first demand for new publications is largely through the circu- lating libraries, which have encouraged the main- 360 THE QUESTION OF COPYRIGHT. tenance of prices sufficiently high to hinder the buying of books. There is also the further reason that in England the readers and buyers of books belong in much larger proportions to the wealthy classes than is the case in the United States. In France and Germany, on the other hand, coun- tries fully under the control of copyright, both domestic and international, the first issues of stand- ard and current publications, both copyright and non-copyright, are cheaper than anywhere els^ in the world. In Paris, for instance, a beautifully printed and beautifully illustrated edition of such a book as Daudet's Tartarin dans les Alpes is published at seventy cents, and this is one example of many. In Berlin, we find such series as Das Wissen der Gegenwart, " The Knowledge of the Present," is- sued in handsomely printed, well-illustrated, and neatly bound volumes, of which sixty-two are now ready, selhng at one mark, twenty-five cents, each. The works in this series are written especially for it by the leading scholars and scientists of the Con- tinent, and this series is one of many. The Leipsic publisher, Tauchnitz, possesses, under the present International Copyright system of Europe, a practi- cal " monopoly " for the sale on the Continent of his cheap reprints, in English, of the works pur- chased by him from English authors. He does not, however, take advantage of such "monopoly" to attempt to extort high prices from his readers, sim- ply because there would be no profit in making any such attempt. He sells these copyright books, in COPYRIGHT AND PRICES. 361 complete and well-printed volumes, at one and a half marks, or thirty-six cents, each. American publishers controlling, under a similar copyright, the sale of similar books for a market of sixty millions of people, would in like manner find it to their advantage to supply this market with low-priced editions planned for popular sale, simply because high-priced editions could not be sold. It is also the case that, since the establishment of International Copyright between the different states of Germany and the several countries of Europe, there has been a steady decrease in the prices, in these countries, of standard and current literature, copyright as well as non-copyright, and a marked impetus has been given to publishing undertakings of service to the community. As Mr. Brander Matthews has well pointed out, the cheapest books to be bought to-day in the United States are mostly inferior stories by con- temporary English novelists, while the cheapest books to be bought to-day in Europe are the best works by the best authors of all times. In Amer- ica, where the system, or lack of system, of " open publishing " prevails, the cheapest books are the least important and often the least desirable. In Europe, where International Copyright is in force, the best books are the cheapest. The absence of In- ternational Copyright encourages bad books or poor books, and discourages good books. Such examples show that the selling price of a book depends not on the copyright but on the ex- tent of the market that can be assured for it. With- 362 THE QUESTION OF COPYRIGHT. out an International Copyright no assured market is possible, and no low-priced international series can be planned or prepared for American readers. Sixth. A reduction can also be looked for in the selling price of certain lines of American fiction and other current literature. Under the present " cut- throat " competition, the pubhshers of the works of such authors as Howells, James, Aldrich, Bret Harte, and other leading American writers have practically given up the attempt to compete with the unpaid-for reprints of foreign writers. Know- ing that they can depend upon certain (compara- tively limited) circles of readers, they find it to be more profitable to obtain from these readers the highest prices they are willing to pay. When, on the other hand, the foreign works are put on the same footing as those of American writers, the pub- lishers of the latter will find it to their interest to plan for the widest popular sale, and for this pur- pose will at once issue their books at popular prices. The possibility of exporting stereotype plates or editions of standard American works will also lessen the proportion of first outlay to be charged to the American edition, and will enable this to be sold profitably at lower prices than would otherwise be practicable. An example of the advantage given to the American buyer by such an export arrangement is afforded by the great Latin Dictionary lately pub- lished by the Harpers. Duplicate plates of this were sold by the publishers for the edition issued by the Clarendon Press, in Oxford, and the saving secured from the proportion of the type-setting and COPYRIGHT AND PRICES. 363 editorial outlay charged to the English edition has enabled the American publishers to sell the book in this market much more cheaply than would other- wise have been practicable. To summarize — the selling price of books de- pends not on the copyright, but on the require- ments of the market and the extent of the market that is controlled by the author and his represent- ative. American buyers are accustomed to cheap books, and will not buy dear books, and the publishers are not likely to throw away their money by making dear books for which they could not find a sale. The wider the markets and the greater the num- ber of the editions between which the first outlays can be divided, the smaller the cost of each edition and of each copy, and the lower the price at which each copy can be and will be supplied. With assured markets, and an assured control to authors and publishers of the results of their literary undertakings, there will be a great increase in the publication of international series, which will pro- vide for American readers, at the lowest prices, satisfactory editions of the works of the leading writers of the world, American, English, and Con- tinental. New York, March 15, 1890. XX. "COPYRIGHT," "MONOPOLIES," AND "PROTECTION." By Geo. Haven Putnam. Reprinted from The Literary World. To the Editor of the Literary World : The writer of an editorial in The Literary World of January 7th (a number which, owing to a mis- chance, has only to-day reached my desk), in refer- ring to the organization of the Boston Copyright Association, speaks of copyright as a "species of protection." The words used are : "For what is copyright but a species of protection ? and what is international copyright but a bulwark erected by protection against free trade? From this point of view the spectacle of President Eliot presiding at an international copyright meeting one day and appearing the next as a sympathetic guest at an anti-tariff dinner is one to be pondered." This " point of view " shows, as it seems to me, a confusion of thought based upon a misconception of the actual meaning of the terms " protection " and " free trade ; " and as such misconception has before now stood in the way of a proper understand- ing of the grounds on which are based the claims of an author to the control of his productions, I think it worth while to ask you to give me space to cor- rect it. The difficulty is really due to the poverty of our " COPYRIGHT," AND " PROTECTION." 365 language, which uses the term " protection " to ex- press two entirely different things, and the same is true of the terms " free trade " and " monopoly," which also have been largely misapplied in the dis- cussion of questions of copyright. The " protec- tion " for which the author asks is simply his por- tion of the benefit of the machinery organized by society for the defence of individual property against unauthorized appropriation. He is in the position of a gardener whose labor has produced a crop of strawberries, and who, in order to retain for his own use the results of his labor, asks for his share of the policeman. In the sense, however, in which it is used in the article in question the term stands for something entirely different. The " protection " to which your writer was referring is the system under which one producer secures through legislation the impo- sition of a tax upon the labor of another producer, and by this means also secures the privilege of tax- ing indirectly (to the extent of any increase caused by such taxation in the average selling price) all the consumers of the things produced. The author, however, asks for no legislation of this kind. In securing copyright for his History of the United States, Professor McMaster secures simply the control of the sales of his own work. He does not ask the government to further the sale of his history by putting a tax upon the production or the sale of any other history of the United States, for instance, that written by the foreigner Von Hoist, The production of future histories of the 366 THE QUESTION OF COPYRIGHT. United States, by American or foreign writers, is not going to be impeded by any privilege conceded to or demanded by McMaster. In like manner the conceding to Justin McCarthy, under an interna- tional copyright, of the control of his History of Our Own Times, would, of course, in no manner have stood in the way of the production of any number of competing histories covering the same period. Mr. Henry Carey Baird takes the ground that there is no propriety in giving to Von Hoist the privilege of making money out of historical facts and records which are the common property of all Americans. Mr. Baird forgets, however, that these facts and records are as much common property after the publication of Von Hoist's history as they were before. Von Hoist's privilege of copyright (if conceded) has not enabled him to diminish in any way the common stock of facts (as the nation's stock of acres is diminished, for instance, by the grants to the Pacific railroads). The stock of his- torical facts available for the use of future writers has, indeed, actually been increased by Von Hoist's researches and labors. It is evident, therefore, that copyright gives to the writer no property in facts or ideas, but simply permits him to control the special form in which he presents these facts and ideas, and it is for this form only, and not for the ideas them- selves, that he asks " protection." The " free trader," in the accepted signification of the term, and the person who is opposing copy- right and talking about " free trade in books," are " COPYRIGHT," AND " PROTECTION." 367 two very different individuals. The former claims for each producer the liberty to do what he will with that which he has produced, such liberty including the right to procure in exchange for the same (sub- ject only to the taxes necessary for the support of the government and for his share of the policeman) the products of any other producers, whether fel- low-citizens or not. He wishes, for instance, to pur- chase with money made out of wheat a ship built on the Clyde, and he would be free to apply in this way the results of his labor and thus to secure fur- ther proceeds from these results if it were not for the existence of an objecting individual or group of individuals in Maine or Pennsylvania. The man who talks about " free trade in books," however, meaning thereby the right to appropriate what another has produced, aims to obtain certain proceeds which he could not have secured but for the existence and the labor of another man, namely, the author of the material to be appropriated In like manner the opponent of any international copyright, or the supporter of the misleading Pear- sall-Smith scheme of " open publishing " (which may be appropriately classified as " copy wrong "), describes as a " monopoly" the right of an author to control the sale of his productions. The dictionary justifies him in such use of the word, which means, of course, " single sale," or sale controlled by a single person. , The term is, however, at present, in its general use associated with something very different, and its application to copyright is misleading and unjustifiable, 368 THE QUESTION OF COPYRIGHT. The popular understanding of the term " monop- oly " covers the appropriation, under legislation, by an individual or a group of individuals, of some por- tion of the property of the community or of the facilities belonging to the community, which, if it were not for such legislation, would remain free to all. In this sense a Pacific railway, to which has been conceded the sole use of a route across the continent and the fee of some thousands of acres of public lands, is a monopoly ; a horse railway, with a charter for the exclusive use of certain public high- ways, is a monopoly; and a telephone company, with a patent under which it prevents the construc- tion of other telephones, and with privileges, thus made exclusive, for the use of its wires, of traversing both public and private property, is a monopoly. The control of a book by the man whose labor has produced the book is not a monopoly, for the exist- ence of such a book does not in any degree stand in the way of the production and sale of any num- ber of books of the same character, and addressed to the same class of readers, and its production has in no degree lessened the extent of the facilities or of the property belonging to the public. The importance of securing at this time, when international copyright is a matter of pending legis- lation, the widest possible understanding of the grounds upon which rests the claim of the author to the control of his productions, is my excuse for troubling you with this letter. New York, January 30, 1888. XXI. SUMMARY OF THE EXISTING COPY- RIGHT LAWS OF THE MORE IMPOR- TANT COUNTRIES OF THE WORLD. Austria (Empire). — Literary and artistic works, published during the life of the author ; term, during his life and thirty years after his death. Posthumous, or anonymous, or published under a pseudonym ■ thirty years after the date of the first publication. Learned societies approved by the Government : fifty years from the date of the first publication. Right of the Government to extend this term by special privilege in favor of important works of science and art. Exclusive right of translations reserved to the author, on condition of the publication being simultaneous with that of the original : in the contrary case, free right of translation permitted after the delay of one year. Free right of arrangement of musical airs, at the ex- piration of one year. Exclusive right of artistic reproduction re- served to the artist, but on condition of reproducing the work within two years : in contrary case, free right of reproduction. Dramatic and musical representations, performed during the life of the author : copyright term during his life and ten years after his death. Posthu- mous, anonymous, collaborated, or published under a pseudonym : ten years after the date of first representation. Interstate law. Admission of the principles of reciprocity. Conventions with the German States (June 8, 1815, and September 6, 1832), Sardinia, the Roman States, the Italian Duchies, and the Canton of Ticino (May 22, 1840), and France (December 11, 1866). Belgium (Kingdom). — Literary works, published during the life of the author : during his life and twenty years after his death. Posthumous ; during the life of the widow and heirs of the author. Exclusive right of translation reserved during the continuance of the first edition. Obligation to print the work in Belgium, and to de- posit three copies with the communal administration. Artistic works, published during the life of the author ; for his life and ten 370 THE QUESTION OF COPYRIGHT. years after his death. Posthumous : ten years after the date of the first publication. Dramatic and musical representations, proposed during the life of the author : for his life and ten years after his death. Copyright to foreigners subject, since 1887, to the Conven- tion of Berne. Brazil (Empire). — Literary and artistic works, published during the life of the author : for his life and ten years after his death. Works published by societies and corporations : ten years after the date of the first publication. Interstate law for the South American States, subject, since l88g, to the Convention of Montevideo. Canada (Dominion of, British Colony). — According to the terms of the paragraph 2gth of the Act of the fifth and sixth years of the reign of Victoria, chapter 45, the laws which rule literary and artis- tic property in the United Kingdom of Great Britain and Ireland are applicable to all British possessions : the legislation of England relating to literary and artistic property is also applicable to the States of the Dominion. Recent copyright legislation has been enacted in the Parliament of the Dominion, which has not yet been approved in Great Britain. Chili (Republic). — Literary and artistic works, published during the life of the author ; for his life and five years after his death. Posthumous : ten years after first publication. Published in Chili by a stranger : ten years after first publication. The deposit of three copies in the library of Santiago obligatory. Right of the Govern- ment to extend these terms. Draniatic and musical representations performed during the life of the author ; for his life and five years after his death. Posthumous : ten years after the date of the first representation. Right of the Government to extend these terms. Has accepted the Interstate Convention of Montevideo. Denmark ( Kingdom). — Literary works, published during the life of the author : for his life and thirty years after his death. Posthu- mous, anonymous, collaborated works, or published under a pseud- onym ; fifty years after first publication. Right of the author barred by limitation, if the work be not commercially successful during five years. Artistic works, published during the life of the author : for his life and thirty years after his death. Dramatic and musical representations, performed during the life of the author : for his life and thirty years after his death. Right of the author expires, if the work has not been represented in the course of five years. Interstate law. Admission and proclamation of the prin- EXISTING COPYRIGHT LAWS. 371 ciple of reciprocity, with regard to France, \>y ordinances of May c. r866. Laws of December 13, 1837; December 2g, 1857; March 31, 1864 ; and February 23, 1866. Ordinances of December 24, 1858, and May 5, 1866. J^rance ( Republic).— Act of the Corps-Legislatif (of the Empire) of July 14, i866, approved by Napoleon, Emperor. The duration of term of copyright accorded under previous legislation, for the works of authors, artists, and composers, is exiended from the life- time of the author and thirty years, to the lifetime and fifty years, whether for widow, children, direct heirs, indirect heirs, legatees, or assigns. In the cases in which the estate of the deceased author becomes the property of the State, the copyright is terminated with the death of the author, and the work falls into the public domain. Works published posthumously are subject to the same term of copyright as obtains for those published during the lifetime of the author. Authors who are citizens or residents of other States enjoy the same rights and term of copyright as those given to French authors, for works first published in France. (This provision is met by simul- taneous publication.) Two copies of all works copyrighted must be deposited at the Ministry of the Interior, or (for transmission) at the prefectures of the departments. The same regulations and the same term of copyright apply in the cases of works of art. The term of copyright is also the same for dramatic and musical compositions, and no representation of such compositions can be given without the written permission of the authors or composers. The conditions of International Copyright have been, since 1887, regulated by the provisions of the Convention of Berne. Germany (Empire). — German interstate law. General convention between different German States. Literary and artistic works, pub- lished during the life of the author . right during his life and thirty years after his death. Posthumous and anonymous, or published under a pseudonym ; thirty years after date of the first publication. Learned societies . thirty years after date of the first publication. Dramatic and musical representations, perform,;d during life of the author, or after his death : ten years after the first representation, if 3/2 THE QUESTION OF COPYRIGHT. the work represented has not been printed. No right of representa- tion for anonymous works. Federal decisions of June 8, 1815 ; September 6, 1832 ; November 9, 1837 ; April 22, 1841 ; June 19, 1845 ; and November 5, 1856. Is a party to the Convention of Berne. Greece ( Kingdom). — Literary and artistic works : right of fifteen years after date of the first publication. Right of the Government to extend the term. Interstate law. Admission of the principle of reciprocity. Holland (Kingdom) and Luxembourg (Duchy). — Literary and artistic works, published during the life of the author : for his life and twenty years after his death. The author has the exclusive right of translation. Obligatory to print the work in the country, and to deposit three copies with the communal administration. In- terstate law : Convention with Belgium (August 30, 1858), and France (March 2g, 1855, July 4, 1856, April 27, i860, and Decem- ber 16, 1869). Law of January 25, 1817. Ordinances of July 2, 1822, and Au- gust 4, 1829. Italy (Kingdom). — Works of literature and art, published during the lifetime of the author : term during his life and up to forty years from the date of first publication. After that term the works are open to publication, but during a second term of forty years the publishers must pay to the owner of the copyright a royalty of five per cent. Exclusive right of translation reserved to author and of repro- duction to the artist for a term of ten years. Deposit of two copies with the Prefect of the province. Publications of the State and of learned societies: twenty years from date of issue. The term for musical and dramatic compositions the same as for works of litera- ture ; such compositions are, however, open to any one to produce or present on the payment of a royalty or proportion of profits. International conditions subject to the Convention of Berne. Japan (Kingdom). — The copyright in literary works is perpetual ; the right of representation in dramatic and musical works continues during the life of the author and for thirty years after his death. Mexico (Republic). — Literary works, published during the life of the author : during his life and ten years after his death. Posthu- mous : ten years after date of the first publication. Learned socie- ties : forty years after date of the first publication. EXISTING COPYRIGHT LAWS. 373 Portugal (Kingdom). — Literary and artistic works, published dur- ing the life of the author : during his life and thirty years after his death. Anonymous, posthumous, and published under a pseudo- nym : thirty years after date of first publication. Learned societies : thirty years after date of first publication. A deposit of copies or proofs obligatory. No right recognized in defamatory libels or ob- scene works. Dramatic and musical representations, performed during the life of the author : during his life and thirty years after his death, in consideration of the payment of a fixed duty. Posthu- mous : thirty years after date of the first representation. Unless stipulated to the contrary, each theatre, after the death of the author, is free to represent his works on payment of a fixed duty. A re- muneration is due to the Royal Conservatory for the representation of translated dramatic works, and of those fallen into public prop- erty. International law. Admission of the principle of reciprocity. Conventions with Belgium (October 11, 1866), Spain (August 5, i860), and France (April 12, 1851, and July 11, 1866). Law of July 8, 1851. Russia (Empire). — Literary work, published during the life of the author : for his life and fifty years after his death. Posthumous : fifty years from the date of the first publication. Learned societies : fifty years from the date of the first publication. Exclusive right of translation for scientific books alone, on condition of making a reservation and of publishing the translation within three years. Lib- erty of reproducing a painting by sculpture and reciprocally. Ob- ligatory to register artistic works. Russian authors have rights of property for works published in foreign countries. Dramatic and musical representations can only be made with consent of the au- thor, under condition of reserving that right. Interstate law. Conventions with Belgium (July 18, 1862), and France (April 6, 1861). Law of January 20, 1830 ; Code of 1857. Spain (Kingdom). — Literary and artistic works, original works, collection of discourses, translation in verse of original works in modern languages, published during the life of the author : for his life and fifty years after his death. Discourses, sermons, and news- paper articles that are not united in collections, published during the life of the author : for his life and twenty-five years after his death, but without the exclusive privilege of translation. Anonymous works and those published under a pseudonym : during the life of the 374 THE QUESTION OF COPYRIGHT. editor, and fifty or twenty-five years aftei his death, according to the class of works as above. Works of learned societies ; fifty years after date of the first publication. Unedited MSS. : twenty-five years after the date of the first publication. Posthumous works : fifty or twenty-five years after date of the first publication, accord- ing to the class of works. Right of the government to authorize the publication of abridgments of, or extracts from, works constituting private property, in the service of the public, on consideration of an indemnity. The deposit of two copies obligatory. Spanish authors have the right of property in their works published originally in foreign countries. Representation, dramatic, and musical, performed during the life of the author : for his life and twenty-five years after his death. Posthumous : twenty-five years after the first representation. In- terstate law : See Convention of Berne. Law of June lo, 1847 ; decree of March 1, 1856. Sweden and Norway (Kingdom). — Literary works : right assured during life of the author and twenty years after his death. Right to all to reproduce works when the author's heirs do not publish new editions. Artistic works : for the life of the author and ten years after his death. Partial or complete imitation and reproduction of works of art interdicted. Interstate law. Admission of the prin- ciple of reciprocity. Constitution of 1844 ; laws of July 16, 1812, September 13, 1828, October 12, 1857, and May 3, 1867. Switzerland {Ke-pnhMc). — Thirteen and a half cantons — Appenzell (Rhodes interior), Aargau, Basle, Berne, Geneva, Glarus, Grisons, Schaffhausen, Ticino, Thurgau, Unterwald, Uri, Vaud, Zurich. Literary and artistic works, published during the life of the author : for his life, unless the duration of the right may be less than thirty years. Posthumous works : thirty years after the date of the first publication, under the condition of publishing them within the six years following the death of the author. Swiss authors have rights of property in their works published originally in foreign lands, on the condition of their declaration as authors, and the deposit of a copy. Has accepted the Convention of Berne. Turkey (Empire). — Literary works : right assured during the life of the author. Right of the government to reprint, on con- dition of indemnity, such works as seem to it useful. Firman of March and April, 1857. Venezuela (Republic). — Literary and artistic works : right as- EXISTING COPYRIGHT LAWS. 375 sured during the life of the author and fourteen years after his death. Deposit of a copy obligatory ; also, a declaration of property, and a demand of patent of privilege. Law of April 19, 1837. Party to the Convention of Montevideo, The Argentine Republic, Egypt, Paraguay, Peru, Uruguay, appear to be the only countries in the civilized world which as yet possess no law on copyright. XXII. THE CONTEST FOR INTERNATIONAL COPYRIGHT. By Geo. Haven Putnam. The history of the movement in this country in behalf of International Copyright is still to be writ- ten. I can present here only a brief summary of the more noteworthy of the earlier events in this history, accompanied by a more detailed statement of the work done during the past three years by the Copy- right Leagues. In 1837, Henry Clay presented to Congress a petition of British authors asking for American copyright. The petition was referred to a select committee, which included, in addition to Clay, Webster, Buchanan, and Ewing. The report sub- mitted by the committee, favoring the petition, was written by Clay, and is given in this volume. Between 1837, the date of rendering his report, and 1842, the bill drafted by Clay on the lines of his report was presented in the Senate five times. But one vote upon it was, however, secured in 1840, when it was ordered to lie upon the table. This bill was in substantial accord with that just passed, - in requiring American manufacture for the books securing copyright. Between 1837 and 1842 numer- CONTEST FOR INTERNATIONAL COPYRIGHT. 377 ous petitions favoring International Copyright were presented to Congress, which were noteworthy as containing the signatures of nearly all the leading authors of the country. During those same five years, 1837-1842, the first International Copyright conventions were being framed between certain of the European states, the earliest being that between Prussia and Wurtemberg. In nearly all these earlier interstate arrangements, it was made a condition that the work should be printed within the territory of the country granting the copyright protection to a foreign author. 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 1840, George P. Putnam issued in pamphlet form an argument in behalf of International Copy- right, and in the same year a somewhat similar argument was printed by Cornelius Matthews. In 1843, Mr. Putnam presented to Congress a memorial, drafted by himself, and signed by ninety- seven publishers and printers, in which it was stated 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." In 1848, a memorial was presented to Congress, signed by W. C. Bryant, John Jay, George P. Put- nam, and others, asking for a copyright measure very similar in principle to that which has just been enacted. The memorial was ordered printed, and 3/8 THE QUESTION OF COPYRIGHT. was referred to a select committee, from which no report was made. In 1853, Charles Sumner, then Chairman of the Senate Committee on Foreign Affairs, interested himself in the subject, and reported to the Senate a treaty drafted by Mr. Everett, then Secretary of State, and himself, to secure copyright with Great Britain ; but he was not able to obtain a vote upon it. In 1853, certain publishing houses in New York including Charles Scribner, D. Appleton & Co., C. S. Francis, Mason Bros., and George P. Putnam, addressed a letter to Mr. Everett, Secretary of State, favoring a Copyright Convention with Great Britain, and suggesting a copyright arrangement substantially identical in its conditions with that secured under the present Act. In 1858, Mr. Edward Jay Morris of Pennsylvania introduced an International Copyright Bill contain- ing similar provisions, but the bill was never re- ported from committee. In 1868, the American Copyright Association was formed, at a meeting held in response to a circular letter, headed " Justice to Authors and Artists." This letter was issued by a committee composed of George P. Putnam, Dr. S. Irenaeus Prime, Henry Ivison, and James Parton. Of this association W. C. Bryant was made President, George William Curtis, Vice-President, and E. C. Stedman, Secre- tary. In 1867, Mr. Samuel M. Arnell of Tennessee se- cured the passage of a resolution in the House of CONTEST FOR INTERNATIONAL COPYRIGHT. 379 Representatives, ordering the joint Library Commit- tee to inquire into the subject of International Copy- right and to report. Such a report was presented in 1868 to the House by Mr. J. D. Baldwin of Mas- sachusetts, together with a bill based upon a draft submitted from the Copyright Association of New York, by W. C. Bryant and George P. Putnam, secur- ing copyright to foreign authors, with the condition that their books should be manufactured in this country. The bill was referred to the joint Com- mittee on the Library, from which it never emerged. In 1870, the so-called Clarendon Treaty was pro- posed through Mr. Thornton, the British Minister at Washington. The proposed treaty gave to the authors and artists of each country the privilege of copyright in the other by registering the work within three months of the original publication. In 1 87 1, Mr. Cox introduced a Copyright Bill practically identical in its provisions with the pre- vious bill of Mr. Baldwin. This was the first bill that reached the stage of discussion in the Com- mittee of the Whole. In 1872, a bill was drafted by Mr. W. H. Apple- ton, which provided that the American edition of the foreign work securing American copyright should be manufactured in this country, and that the American registry of copyright should be made within one month of the date of the original publi- cation. In the same year the draft of a bill was submitted by Mr. John P. Morton of Louisville, under which any American publisher was to be at liberty to reprint the work of a foreign author, on 38o THE QUESTION OF COPYRIGHT. the condition of making payment to such author of a ten per cent, royalty. Later in the year a similar measure was introduced by Mr. Beck and Mr. Sherman, providing that the royalty should be five per cent. Both these bills were referred to the Library Committee. In 1873, Senator Lot M. Morrill of Maine re ported, on behalf of the Library Committee, ad- versely to the consideration by Congress of any International Copyright Bill, on the ground that " there was no unanimity of opinion among those interested in the measure." In 1874, Mr. Henry B. Banning of Ohio intro- duced in the House the sixth International Copy- right Bill, which gave copyright to foreign authors on the simple condition of reciprocity. It was referred to the Committee on Patents, where it remained. In 1878, the project for a Copyright Convention, or treaty, was submitted by Messrs. Harper & Brothers to Mr. Evarts, then Secretary of State; and in 1880 the draft of a Convention, substan- tially identical with the suggestions of Messrs. Harper, was submitted by Mr. Lowell to Lord Granville. In 1883 the American Copyright League was organized, mainly on the lines of a plan drafted in 1882, by Edward Eggleston and R. W. Gilder. Mr. George Parsons Lathrop was made Secretary, and an active campaign was begun in arousing and educating public opinion on the subject. In 1882, Mr. Robinson of New York presented ^ CONTEST FOR INTERNATIONAL COPYRIGHT. 3S1 bill giving consideration to the whole subject of copyright, domestic and international. It was re- ferred to the Committee on Patents, where it was buried. In 1883, the eighth Copyright Bill was introduced by Mr. Patrick A. Collins of Massachusetts. This also was buried in the Committee on Patents. In 1884, the ninth International Copyright Bill was introduced into the House by Mr. Dorsheimer of New Yoilc. This provided simply for the ex- tension to foreign authors of the privileges en- joyed by the citizens or residents of the United States. This bill was approved by the Copyright League, and was favorably reported to the House from the Committee on the Judiciary, to which it had been referred. It reached the stage of being discussed in the House, but a resolution to fix a day for its final consideration was defeated. In the same year a bill was introduced in the House by Mr. English, dealing with International Copyright in dramatic compositions. It was re- ferred to the Judiciary Committee, which took no action. In 1885, Mr. Lowell accepted the Presidency of the Copyright League, and Mr. Stedman was made its Vice-President. In the same year, at the in- stance of the League, Senator Hawley of Connec- ticut introduced his Copyright Bill (the text of which is given in this volume), which was substan- tially identical with that of Mr. Dorsheimer. The bill was referred to the Senate Committee on Pat- 382 THE QUESTION OF COPYRIGHT. ents. It was introduced in the House by Randolph Tucker of Virginia, and was, Hke its predecessors, referred to the Committee on the Judiciary. In 1884 and in 1885 the annual messages of Presidents Arthur and Cleveland contained earnest recommendations for the enactment of some meas- ure of International Copyright. January 21, 1886, the twelfth International Copy- right Bill was brought before the Senate by Jona- than Chace of Rhode Island, and was referred to the Committee on Patents. As Mr. Solberg points out in his clearly presented record of the fight for copyright, the introduction of the Chace Bill marked a distinct epoch in the history of the struggle for International Copyright. The long work of education through the public press, the distribution of pamphlets and missionary addresses, was at last bearing fruit, and in 1886 it was not so much a question whether there should be or should not be an International Copyright, but simply what form the law should take. The Senate Committee on Patents gave a careful consideration to the two measures then before them, the Hawley Bill and the Chace Bill, and took testi- mony concerning them in four public hearings. On May 21, 1886, the committee presented a report recommending the passage of the Chace Bill, but no further action was secured in the Forty-ninth Con- gress. Senator Chace was, however, a more persist- ent champion than the cause of copyright had pre- viously been fortunate enough to secure, and on December 12, 1887, in- the first session of the Fif- CONTEST FOR INTERNATIONAL COPYRIGHT. 383 tieth Congress, he reintroduced his bill, which was again referred to the Committee on Patents. In November, 1887, the American Copyright League (which was composed, in the main, of the authors of the country) voted to its Executive Committee full discretion to secure the enactment of such measure of International Copyright as might, in the judgment of the committee, be found equi- table and practicable. Armed with this authority, the Executive Committee decided to use its efforts to secure the passage of the Chace Bill, the only measure for which any adequate support in Con- gress could be depended upon. Of this commit- tee Edward Eggleston was Chairman, George Walton Green, Secretary, and R. U. Johnson, Treasurer. In December, 1887, the organization was effected of the American Publishers' Copyright League, with William H. Appleton as President, A. C. McClurg as Vice-President, Charles Scribner as Treasurer, and Geo. Haven Putnam as Secretary. The Executive Committee of this league was in- structed to co-operate with the American authors in securing an International Copyright. A Conference Committe, was at once formed of the executive committees of the two leagues, and every subsequent step in the campaign, until the passage of the bill in 1891, was taken by this Con- ference Committee. Mr. Putnam acted as Secre- tary of the Conference Committee until Novem- ber, 1889, when he was obliged to give up the post on the ground of ill-health, and from that time until 384 THE QUESTION OF COPYRIGHT. the passage of the bill, in March, 1891, the secretary's work for the Conference Committee was most ably carried on by Mr. R. U. Johnson, who had become Secretary of the Authors' League. He divided with Mr. Putnam the task of pre- paring the documents, but he took upon himself the chief burden of the correspondence and of the arduous work in Washington. This latter was shared with him by Edward Eggleston and Mr. Putnam, the personal influence of Mr. Eggleston being especially valuable. The Copyright Association of Boston had been formed in December, 1887, at the instance of Mr. Houghton, Mr. Estes, President Eliot, President Walker, and other of the leading citizens of Boston having to do with literature. Mr. Estes-was made Secretary, and under his act- ive direction the association promptly made its influence felt, and succeeded in arousing interest in the question with the public and among the Con- gressmen of New England. The Boston associa- tion was represented in the Conference Committee by Mr. Houghton and Mr. Estes, and in addition to its local work it took its full share of the respon- sibilities of the general campaign. A Copyright League was also organized in Chi- cago, with General McClurg as President, the influ- ence of which throughout the northwest proved very valuable. Auxiliary leagues were also formed in St. Louis, Cincinnati, Minneapolis, Denver, Buf- falo, Colorado Springs, and other places, and a large amount of " missionary " work for copyright was CONTEST FOR INTERNATIONAL COPYRIGHT. 385 done throughout the country. The Rev. Henry S. Van Dyke of New York took the lead in the work of interesting ministers in the moral phase of the question, and his own address on the " National Sin of Piracy " was widely circulated. Archdeacon A. Mackay Smith of New York did some effective writing in behalf of the bill in the Churchman and elsewhere, and by means as well of the pulpits as of the more intelligent of the journals, Interna- tional Copyright was made a question of the day throughout the country. A noteworthy feature in the authors' share of the campaign was the holding of " authors' readings " at meetings called for the purpose in New York, Brooklyn, Washington, Boston, Chicago, and else- where, at which the leading authors of the country read selections from their own writings. The " read- ings " were well attended and served as an effective advertisement of the copyright cause, while the admission fees helped to defray some of the mis- sionary expenses of the campaign. Among the authors who co-operated in these readings were Edward Eggleston, Stedman, Stoddard, Gilder, Stockton, Bunner, Cable, Page, Julian Hawthorne, Harris (" Uncle Remus "), Mrs. Maud Howe Elliott, and others. Testimony before the Committee of the Senate and the House was given on behalf of the bill by a number of representatives of the two leagues, in- cluding, among the authors, E. C. Stedman, Edward Eggleston, R. U. Johnson, R. W. Gilder, Mark Twain, and R. R. Bowker, and among the pub- 25 386 THE QUESTION OF COPYRIGHT. lishers, W. W. Appleton, H. O. Houghton, Chas. Scribner, Dana Estes, and G. H. Putnam. Mr. Kennedy, Mr. Welsh, and other representa- tives of the Typographical Unions of Boston, New York, and Philadelphia, were also heard. Argu- ments in opposition to the bill were presented by Mr. Gardiner Hubbard, a lawyer of Washington, who said that he spoke simply for himself, and by Messrs. Arnoux, Ritch & Woodford, a law firm of New York, representing certain clients whose names they were unwilling to disclose. After two years of service on behalf of these anonymous clients, they finally stated, under pressure from the Chairman of the House Committee on the Judiciary, that they were opposing the bill in the interest of Mr. Ignatius Kohler of Philadelphia, Mr. Kohler being a Ger- man publisher of modest business standing. The committee did not feel that it had been candidly dealt with by the counsel, and this feeling doubtless helped to secure their favorable report for the bill. The first draft of the bill which was submitted to Senator Chace by the authors and the publishers provided that foreign books securing American copyright must be printed in the United States, but permitted the importation of clichds of the type or of duplicates of the plates used in printing the original editions. It was contended that for certain classes of books the necessity of doing the type-setting twice in- stead of dividing its cost between an English and an American edition would involve a ^yasteful expense. CONTEST FOR INTERNATIONAL COPYRIGHT. 387 the burden of which would have to be shared be- tween the readers, the authors, and the publishers. On the other hand, the Typographical Unions in- sisted that a provision for American type-setting was essential for their trade interests, and that un- less such a provision were inserted they would be under the necessity of opposing the bill. It was the opinion of Senator Chace, and of other of the congressional friends of copyright, that the co- operation of the unions would be very important, while their influence against the bill in committee and through their friends in the House would prob- ably be sufficiently powerful to prevent its passage, at least at any early date. It was, therefore, decided by the authors and pub- lishers of the two leagues to meet the views of the typographers on this point, and, in utilizing their co-operation to associate with the Conference Com- mittee a representative of the National Typographi- cal Union. Mr. Boselly was the first typograph- ical representative ; he was later succeeded by Mr. Dumars, who had also succeeded him as the Presi- dent of the New York union. The most active and important work for the bill on behalf of the Typo- graphical Unions was, however, done by Mr. Ken- nedy, of the Washington union, whose services in Washington proved most valuable. The negotiations with the Unions were carried on in Philadelphia by Mr. C. Febiger, and in New York by Mr. Eggleston and Mr. Putnam. The National Association of Typothetae, or em- ploying printers, was represented in the Conference 388 THE QUESTION OF COPYRIGHT. Committee by Mr. Theodore F. De Vinne, through whose influence and arguments, at two of the an- nual meetings of the Typothetse, resolutions were secured in support of the bill. The second bill introduced by Senator Chace con- tained the clause, drafted at the instance of the typographers, providing that the foreign book se- curing American copyright must be printed from type set within the United States. It also provided for the prohibition of the importation of all foreign editions of works copyrighted in this country. For the wording of these provisions of the bill Henry C. Lea of Philadelphia was chiefly responsi- ble. Mr. Lea, himself an author of distinction, had had long experience as a publisher. He was a strong believer in the principle of international copyright, but he was equally clear in his convic- tion that it would be contrary to the interests of the community to permit any injury to the business of the American book-making trades, or to transfer to English publishers any control of the American book-market. He contended, therefore, that the total American manufacture of the books copy- righted must be made an essential condition of the concession of American copyright to foreign au- thors. His contention, backed up by the printers, was finally accepted by the authors, and the " type- setting " and " non-importation " clauses were in- serted in the bill. The Chace bill, thus modified, was introduced in the House March 19, 1888, by W. C. P. Breckinridge of Kentucky, and referred to the Judiciary Com- CONTEST FOR INTERNATIONAL COPYRIGHT. 389 mittee, and by the committee favorably reported to the House April 21. On April 23 the bill was called up for considera- tion in the Senate, and after a discussion which took portions of several days, it was passed May 9, 1888, by a vote of 34 to 10. The leaders in its support were Senators Chace, Hawley, Hoar, Frye, and Piatt, while its most active opponents were Senators Beck of Kentucky, Daniels of Virginia, George of Mississippi, and Rea- gan of Texas. In the House the bill was not in as favorable a position on the calendar, while the long discussion of tariff questions in connection with the Mills Bill had seriously blocked the progress of business. Not- withstanding, therefore, the prestige of the success of the measure in the Senate, it did not prove prac- ticable during the session to bring it to a vote in the House. The difficulty may, also, have been some- what increased by the fact that the bill had origi- nated in the Senate, which was strongly Republican, while the conduct of business in the House was in the hands of a Democratic majority. The campaign for the Copyright Bill in the Fifty- first Congress was initiated at a breakfast given in New York on the 7th of December, 1889, by advo- cates of International Copyright, to the Comte de Keratry, in compliment to himself and to the French literary and artistic associations of which he was the representative. In the Fifty-first Congress the bill was promptly introduced in the Senate December 4, 1889, by Sen- 390 THE QUESTION OF COPYRIGHT. ator O. H. Piatt of Connecticut (Senator Chace having in the meantime resigned his seat), and was again referred to the Committee on Patents. A duplicate of the bill was, on January 6, 1890, intro- duced in the House by W. C. P. Breckinridge of Kentucky, its old-time supporter, and found its way in regular course to the Committee on the Judiciary, From this committee it was favorably reported on January 21, 1890. For the purpose of securing a double chance for the bill, Mr. Butterworth of Ohio, an earnest friend of copyright, also introduced the bill, and had it referred to the Committee on Pat- ents, of which he was chairman. The result showed that if it had not been for this piece of foresight the bill could hardly have succeeded in the Fifty- first Congress. In this Congress the majority in the House, as well as in the Senate, was Republican, and it was, therefore, essential to place the bill under Republican leadership. Fortunately, in connection with this necessity, two active friends had been found for the measure on the Republican side of the House — Mr. G. E. Adams of Chicago, and Mr. W. E. Simonds of New Haven. The former presented to the House on the 15th of February, a forcible report in favor of the bill, together with a new printing of the bill itself, giv- ing the full wording of the sections of the Revised Statutes, as they would appear when the new pro- visions had been inserted. On February 18, Mr. Simonds submitted a fav- orable report from the Committee on Patents, CONTEST FOR INTERNATIONAL COPYRIGHT. 391 accompanied by a bill which was a duplicate of that of Mr. Adams, with the addition, however, of what is known as the Reciprocity clause. On February 21, Senator Piatt obtained leave to substitute the text of the Adams bill for his Senate bill. On the 1st of May, the Adams Judiciary Com- mittee Bill was reached on the calendar of the House, and after a vigorous discussion, extending over two days, the third reading was refused by a vote of 126 to 98. The opposing vote was largely Democratic, but it was led by a Republican, Judge Lewis E. Payson of Illinois, while on the Demo- cratic side Mr. Breckinridge of Kentucky was, as heretofore, active in support of the bill ; and he was ably assisted on his side of the House by W. F. Wilson of West Virginia, Ashbel P. Fitch of New York, and others, and among the Republicans, by Mr. Lodge, Mr. Stewart of Vermont, Mr. Si- monds, and others. Not discouraged by this adverse vote, Mr. Simonds, having added a reciprocity clause to his bill, again introduced it on the i6th of May, and had it referred to the Committee on Patents, and on June 10 it was again reported from that committee. The report, which was written by Mr. Simonds, was most comprehensive and forcible, and it has been included in this volume. Early in the second session, Mr. Simonds suc- ceeded in getting a day fixed for his. bill, and on December 3 the bill was passed by a vote of 139 to' 96. The result was partly due to skilful parliamentary management, and to the personal influence brought 392 THE QUESTION OF COPYRIGHT. to bear upon more or less indifferent members and upon members who had previously misapprehended the subject, by Representatives who had made a careful study of it, like Mr. Lodge of Massachu- setts, Mr. Simonds, and others. A good share of the credit for the noteworthy change in the opinion of the House may, however, justly be claimed for the active " missionary " work which had been kept up by the league during the summer throughout the country, and especially in the constituencies of doubtful members, by means of the distribution of tracts and arguments, the preparation of material for the leaders of local newspapers, and also by reaching the personal cor- respondents of authors and the friends of authors. The higher grade journals throughout the country gave a hearty support to the bill, and the aid of the Times, Tribune, and Post, of New York, the Sun of Baltimore, the Times and Ledger of Philadelphia, and the Coinm.ercial of Cincinnati, was especially valuable. The members of the book trade were kept thoroughly informed and educated on the sub- ject by an able series of papers in the Publishers' Weekly. The bill, as passed in the House, was considered in the Senate in a discussion extending over por- tions of'six days. Certain of the senators who had previously voted for the bill and who had expressed themselves as friendly to its principles, found themselves now inter- ested in proposing various amendments, some of which were inconsistent with the main purpose and CONTEST FOR INTERNATIONAL COPYRIGHT. 393 with the existing provisions of the bill, and all of which were promptly taken advantage of by the op- ponents as affording opportunities for killing the bill by delays. The amendment which brought out the largest amount of discussion was that offered by Senator Sherman, which has already been referred to in this volume (in the analysis immediately following the text of the Act). This amendment authorized the importation of foreign editions of books by foreign authors secur- ing American copyright. The supporters of the bill contended that such an authorization would be incompatible with the manufacturing provisions of the bill, which made American manufacture of all the editions issued in this country an essential con- dition of American copyright. It became apparent after the first conferences that the House would not recede from this view, and the amendment, after being twice passed by the Senate, was finally aban- doned. A modification was, however, finally made in the Conference Committee in the provision of the bill permitting the importation of copies of authorized foreign editions of works copyrighted in the Unit- ed States, in quantities not to exceed two copies in any one invoice. This provision, as originally worded, made the written consent of the owner of the copyright a condition of the importation of these two copies. The Conference Committee eliminated the consent of the author. This con- cession undoubtedly helped to secure the final vote 394 THE QUESTION OF COPYRIGHT. in the Senate, accepting the bill without the Sher- man amendment, as it removed the objection that readers preferring European editions ought not to be prevented from securing these (in duly author- ized issues) for their own libraries. A fourth amendment, to the consideration of which a good deal of time was also given in the Senate, was presented by Senator Frye, in the interests of American . lithographers and chromo manufacturers. As first worded, it provided that foreign artists and designers could secure American copyright for their art productions or designs only when the re- productions of these had been manufactured in the United States. This Frye amendment was vigor- ously opposed by the artists throughout the country and by all who were interested in having justice _ done to foreign artists, and petitions against it came in from New York, Boston, Philadelphia, Chicago, and elsewhere. The friends of the bill pointed out that it would in the larger number of cases be ab- solutely impracticable for foreign artists to arrange to have the reproductions of their works of art manufactured in the United States, as this would necessitate the importation of the original — an im- portation entailing, in addition to other serious disadvantages, outlays for freight and duty. The amendment would, therefore, have the re- sult of nullifying the American copyright of for- eign artists, which it had been the intention of the bill to secure. The amendment was later mod- ified in the Conference Committee, and, as it was CONTEST FOR INTERNATIONAL COPYRIGHT. 39S finally incorporated in the bill, it provided for the American manufacture only of such art reproduc- tions as took the form of lithographs, photographs, and chromos ; and left the foreign artist, therefore, in a position to secure, irrespective of place of man- ufacture, American copyright for reproductions in the form of engravings (on steel or on copper) and photogravures. An amendment proposed by Senator Ingalls, and finally accepted, with some modifications, by the Conference Committee, permitted the importa- tion of foreign newspapers and magazines contain- ing material that had been copyrighted in the United States, provided the publication in such periodicals had been authorized by the author. The most active supporters of the bill in the Senate were Senator Piatt, whose patience, parlia- mentary skill, and tact were unwearying, and Sena- tors Hoar, Evarts, Hawley, Wolcott, Aldrich, and Dixon. The most persistent and unwearying opponent was Senator Daniels of Virginia, who was supported in his opposition by Senators Sherman, Hale, Pasco, Vance, Reagan, and Plumb. Mr. Daniels took up a considerable portion of the time allotted to the bill during the several days of the debate, and at one time it looked as if he would succeed, in connection with the crowded condition of the calendar, in killing it by " talking out the time." While criticising severely the protectionist provisions of the bill, he voted for the Frye amend- ment, which constituted an important addition to 396 THE QUESTION OF COPYRIGHT. these provisions, and he voted for every amendment which seemed likely to make delays. The bill, with the several Senate amendments, passed the Senate on the 19th of February, by the decisive vote of 36 to 14, 38 members being absent. On the 1st of March the House decided, by a vote of 128 to 64, not to concur with the Senate amendments. The friends of the measure voted with the majority, having already assured them- selves that it would not be practicable to pass the bill in the House with the amendments. On the 3d of March Mr. Simonds reported to the House that the Conference Report had agreed upon certain of the amendments, with some modifications, but had disagreed upon the Sherman amendment. He secured, by a vote of 139 to 90, authority for another conference. On the evening of the same day the Senate refused, by a vote of 33 to 28, to recede from the Sherman amendment, but also ordered another conference. The result of this second conference, which took place after one o'clock on the night of the 3d, was a report to the Senate by a majority of its com- mittee, in favor of receding from the Sherman amendment. The change in the opinion of the Senate Committee had been brought about by a change in the position of Senator Hiscock, who had become convinced that if an International Copyright- Law was to be enacted by the Fifty-first Congress, the Sherman amendment must be abandoned. His associates on the committee were Senator Piatt, who had from the outset opposed the amendment, CONTEST FOR INTERNATIONAL COPYRIGHT. 397 and Senator Gray of Delaware, who favored it. The report of the second Conference Committee was accepted by the House, by a a vote of 127 to 82, the House having accepted from the Senate the Frye amendment (as modified), the Ingalls amend- ment, and an amendment proposed by Senator Edmunds, giving to the President, in place of the Attorney-General, the responsibility of declaring when reciprocity had been arranged for with any foreign state, and the provisions of the act had, therefore, come into force with such state. The successful steering of the bill through the House in the several votes required during the night of the 3d of March was largely the work of Henry Cabot Lodge, and was not a little furthered by the friendly co-operation of Speaker Reed. At half-past two in the morning of March 4 the Senate assented to the final report of its Conference Committee, by a vote of 27 to 19 (with 40 senators absent), and the bill was passed. A motion to reconsider was, however, immediately made by Mr. Pasco of Florida, and, although the bill had in the meantime been signed by the Vice- President, it was not permitted to be sent to the President until a quorum could be secured to vote 'upon Mr. Pasco's motion. This was accomplished at half-past ten in the morning of March 4, within an hour of the close of the Fifty-first Con- gress, when the motion to reconsider was defeated by the vote of 29 to 21, with 36 absentees. The greater number of the senators had been up through a large part of the night, and the friends 398 THE QUESTION OF COPYRIGHT. of the bill were rallied to resist this last assault only by means of an urgent " whip " delivered in person by Mr. Johnson, Mr. Appleton, and Mr. Scribner, who, acting on behalf of the Copyright Leagues, had, in company with Mr. Piatt, Mr. Lodge, and other friends of the bill, kept a continuous vigil over its varying fortunes during the long hours of the night session. The bill was promptly signed by the President, and thus, after a struggle extending over fifty-three years, the United States put itself on record as ac- cepting the principle of International Copyright. New York, Aptil 2, 1891. EXTRACTS FROM THE SPEECHES OF SENATORS PLATT AND EVARTS, IN THE COPYRIGHT DEBATE IN THE SENATE. February lo, 1891. — Mr. Platt, in calling up the Copyright Bill, said : " Mr. President, I do not wish to take the time of the Senate in any- lengthy explanation of this bill. We have now waited fifty-three years for this moment, when an international copyright law could be enacted. Fif- ty-three years ago, Henry Clay made a report which, in the estimation of thoughtful men, thoroughly demonstrated not only the expediency, but the duty of extending the right of copyright to foreign- ers by the passage of an international copyright law. " I will simply say that the bill proceeds upon one broad fundamental principle, and that is that what a man fashions by his brain, his genius, his imagina- tion, or his ingenuity is property, just as much as what he fashions by his hands, or acquires by manual or other labor; and that, being property, it should be property the world over, and should be recognized as such. If an American writes a book, the right to publish that book should be recognized as property not only in this country, as it now is under the Constitution, but as property everywhere. If a citizen of another country writes a book, the 400 THE QUESTION OF COPYRIGHT, right to publish that book should be as much property in this country as in his own country. " That is the broad principle on which this bill rests — the protection of property, for which gov- ernments are instituted. The principle has been recognized in the case of patents, and not a little of the growth and prosperity of the country is due to the fact of the recognition by this government, that a foreigner who invents a new machine or discovers a new process shall be entitled to secure a patent for the same in this country. " The Constitution puts authors first, in saying that Congress may secure to them exclusive rights ; it puts them before inventors ; but the legislation of the country has extended the provisions of the Constitution in the matter of inventions very much further than it has in the matter of authorship, and those who come in under the generic term of authors. " I believe myself no measure before this Congress is so calculated to enhance not only the intellectual, but the material growth of this country, as this copyright bill, and I trust it will pass without amendment. " As I said, we have waited fifty-three years for this opportunity, and this opportunity may be wholly lost if at this time amendments should be pressed in the Senate. " I do not know that I should call this a perfect bill, but it is a bill which has had long considera- tion by committees of the Senate and of the House of Representatives. It comes to us from the House, EXTRACTS FROM SPEECHES. 401 and now is our opportunity to obtain the passage of such a law. If there is anything in it which needs further examination, which would call for further legislation, the way for the people who desire international copyright to obtain it is to pass this bill while we have the opportunity to pass it, and to establish the principle of copyright in this country for aliens, and copyright in Europe for Americans. Then, if the provisions of the act may be found to need modification, you can trust to the future that justice will be done." . . . February 14. — Mr. Piatt said (replying to Mr. Allison and Mr. Sherman) : . . . " The fundamental idea of a copyright is the exclusive right to vend, and the prohibition against importation from a foreign nation is neces- sary to the enjoyment of that right. It is the right to vend within the country where the copyright is granted that gives value to the work of the author. . . . " I was saying that the very essence of copyright is the privilege of controlling the market. That is the only way in which it can be reached ; it is the only way in which the right can be vindicated ; it is the only way in which a man's property in the work of his brain, or his imagination, or his genius, can be assured. I am sorry to say that I apprehend a good deal of this contention arises from the lack of a desire to protect a man in that species of property ; and I am afraid the idea, so prevalent, and so in- creasing in the country in these days, that property rights generally are not so very sacred, has to 26 402 THE QUESTION OF COPYRIGHT. some extent affected the consideration of this sub- ject. " Of course the right is exclusive. It is exclusive in this country under our laws, and it is exclusive in every country which has copyright of any kind, national or international. The man who has a copyright in England, and also in Germany, cannot import his books from Germany into England, or his engravings from Germany into England, unless he be the proprietor in England of the copyright ; nor can the English proprietor of the copyright export his books, his engravings, or whatever be the subject of his copyright into Germany unless he is the proprietor of the copyright in both countries. " There, of course, the consent of the proprietor is not required ; but without the consent of the proprietor of the copyright, whether he be the publisher himself, or whether the person to whom the author has transferred his right is the publisher, exportation and importation are prohibited. The right is exclusive, and it must be. It is in the essential nature and characteristic of the property that it should be thus protected. Why should not a man's property in his work be protected ? Why should anybody want to import from a foreign country a work when the United States has given to the person of this country its sole market for the work? " Mr. President, I insist that geographical divis- ions ought not jn any way to affect the question of copyright. Having once laid the foundation, that it rests upon the essential and inherent right of a EXTRACTS FROM SPEECHES. 403 man to be protected in his property, it does not make any difference whether the owner of it be an American or a foreigner. If the author or the artist in this country, being an- American citizen, is entitled to be protected in the reproduction of his work in this country, there is nothing in the fact that a sea divides us from another country which would war- rant us in saying that our country should have a right to appropriate the work of the foreign au- thor or of the foreign artist. It is appropriation that people are after when they seek to limit copy- right to a single country, and to the citizens of a single country." . . . February 10. — Mr. Evarts said, referring more particularly to the Sherman amendment : " Mr. President, I rise for the purpose of speaking to the amendments proposed, but I will submit a few ob- servations brought out by the treatment given to this subject by the Senator from Ohio (Mr. Sherman). "The Senator seems to misconceive the nature of copyright or patent protection. " We perfectly understand it in our application under our Constitution and our laws to the copy- rights and the patent rights which we grant here to our citizens. It has nothing to do with the question whether there should or should not be any profit or tax of importation or otherwise, or any excise upon printing books which may fall under this or that interest of Congress in its revenue system. So it is in regard to any foreign patent or any foreign author. "The sole question for us is what we shall do concerning something which is the essential nature 404 THE QUESTION OF COPYRIGHT. of copyright and patent protection, namely, monop- oly. It does not touch the question whether there shall be taxation here or there on the general prop- erty of the country, or on general importations into the country. It is this one direct proposition, as correctly expressed in the Constitution as the most careful phrase that could be adopted. It is to en- courage these advantages to the world, that is, this world of ours, in this country, so that we can draw into the service of the community what is, as orig- inated, the private possession of inventors and writ- ers. " It is a monopoly with them before they make their composition or invention open, and it is simply a contract which has been thought wise for the public welfare that we shall say to the author or inventor, ' for a limited period you shall have a monopoly under certain conditions of public use while your monopoly exists, and afterwards it shall be free.' "So no confusion of ideas should be introduced into this debate, based on the fact that we are now proposing to make the same treaty of monopoly with a foreign author that we make habitually with our own authors. We have led the way, in regard to patent rights, by which we have drawn into the advantage of this country patent inventions upon the principle of monopoly equivalent to our own ; and the question then as to whether we should be at liberty to import also the manufactured inven- tions on a duty or because one would like to have an article that was made by a Sheffield manufacturer EXTRACTS FROM SPEECHES. 405 instead of by a Lowell manufacturer is wholly out- side of the question of monopoly. " It has no proper application to the case. It is an invasion of the principle. If you do not wish to give a monopoly then do not give it, but do not say with one word, ' we give you a monopoly, provided, however, that such monopoly can be evaded by the importation of manufactures produced abroad. ' " PUBLISHERS AND THE COPYRIGHT BILL. The passage on the last day of Congress of the International Copyright Bill was preceded by an interesting debate in the Senate over the report of the Conference Committee. Apropos of the charges that the bill contained undue restrictions by reason of " the greed of the publishers," it is interesting to read the remarks on this point of Senator Piatt and of Senator Hiscock, who were both members of the Senate Conference Committee. According to the report of the debate in the Con- gressional Record, Senator Piatt said : " I think the Senator from Delaware hardly does the publishers of this country justice in the state- ment which he has just made. I think, so far as the publishers are concerned, they would be willing, and have been willing, to accept a good many modifica- tions of the bill ; but the people who do the work, the printers, have insisted, and I think with a great deal of justice, that if we are going to allow to a foreigner the exclusive market for his work we ought at least to couple with it a provision that the 4o6 THE QUESTION OF COPYRIGHT. work shall be done in this country, inasmuch as, practically, if an American goes abroad to obtain a copyright in a foreign country the work on his book will be done in that country." Senator Hiscock said (also in reply to Senator Gray) : " The Senator certainly should not insinuate in any way, or charge that as against the proposition we have been pressed by the publishers, or that they have thronged the lobby in opposition to it. I say to him that in my opinion that the proposition (?'. e., the Sherman amendment) will be entirely acceptable to the publishers. But there is an interest that is entitled to be heard upon this great question, the printers ; and they have been heard. In their judgment a bill ought not to pass here, the effect of which might be to transfer the publication of books, either of this country or of foreign authors to be sold here, to England, Ger- many, France, or the islands of the sea. The argu- ments which they have urged against it, the necessi- ties which they have urged, were controlling upon the House conferees, and I do not hesitate to say that they have controlled my action in this matter. Do not lay it, therefore, to the publishers ; they may be eliminated ; and place the blame, the fault, if there is any, precisely where it belongs. I do not believe it to be a fault, or that they are to blame for it." This evidence from the two men who were best acquainted with the facts shows clearly the real attitude of the publishers in relation to the bill. THE VOTE IN THE HOUSE OF REPRE- SENTATIVES, DECEMBER 3, 1890, BY WHICH THE COPYRIGHT BILL WAS PASSED. Yeas. Adams JVays. Abbott. Allen, Mich. Atkinson, Pa. Andrew. Barnes. Arnold. Atkinson, W. Va. Bergen. Bland. Baker. Blount. Banks. Bartine. Breckinridge, Ark. Brewer. Bayne. Brickner. Beckwith. Brookshire. Belden. Brown, Ind. Belknap. Buchanan, Va. Bingham. Candler, Ga. Boothraan. Cannon. Boutelle. Clements. Breckinridge, Ky. Cobb. Brosius. Cooper, Ind. Brunner. Crisp. Buchanan, N. J- De Lano. Burrows. Dibble. Burton. Dockery. Butterworth. DoUiver. Bynum. Edmunds. Caldwell. Enloe. Campbell. Finley. Carter. Flick. Caswell. Cheadle. Forman. Forney. 4oS|.o8 THE QUESTION OF COPYRIGHT, Yeas. Nays. Cheatham. Fowler. Chipman. Gest. Clancy. Goodnight. Clark, Wyo. Hare. Cogswell. Hatch. Coleman. Haugen. Comstock. Hays, Iowa, Cooper, Ohio. Haynes. Covert. Heard. Craig. Henderson, 111. Culbertson, Pa. Henderson, Iowa. Cummings. Henderson, N. C. Cutcheon. Herbert. Dalzell. Holman. Dargan. Hooker. Darlington. Kelley. Dingley. Kerr, Iowa Dorsey. Kilgore. Dunnell. Lacey. Dunphy. Lane. Evans. Lanham. Farquhar. Lester, Va. Fitch. Mansur. Flower. Martin, Ind. Geissenhainer. Martin, Texas. Gibson. McClellan. Greenhalge. McCreary. Grout. McMillan. Hansbrough. McRae. Harmer. Mills. Hemphill. Montgomery. Hermann. Moore, Texas. Houk. Morrill. Ketcham. Norton. Kinsey. Gates. La Follette. O'Ferrall. Laidlaw. O'Neill, Ind. Langston. Owens, Ohio. Lansing. Paynter. VOTE IN THE HOUSE OF REPRESENTATIVES. 409 Yeas. Lawler. Laws. Lee. Lester, Ga. Lodge. Magner. Maish. McAdoo. McCarthy. McComas. McDuffie. McKenna. McKinley. Miles. Miller. Moffitt. Moore, N. H. Morey. Morrow. Morse. Mudd. Mutchler. O'Donnell. O'Neil, Mass. O'Neil. Pa. Osborne. Owen, Ind. Payne. Penington. Post. Price. Quackenbush. Quinn. Randall. ReiUy. Reyburn. Rusk. Russell. -Sawyer, Nays. Pay son. Peel. Perkins. Perry. Peters. Pierce. Ray. Reed, Iowa. Richardson. Reckwell. Rogers. Sayers. Skinner. Smith, III. Smith, W, Va. Springer. Stewart, Texas. Stone, Ky. Sweney. Taylor, Ohio. Thomas. Turner, Ga. Wheeler, Ala. Whitelaw. Whiting. Wike. Williams, 111. Wilson, Mo. Republicans 25, Democrats 70, in all 95. 4 410 THE QUESTION OF COPYRIGHT. Yeas. Scull. Sherman. Shively. Simonds. Smyser. Snider. Spinola. Spooner. Stephenson. Stewart, Vt. Stivers. Stone, Pa. Sweet. Tarsney. Taylor, Tenn. Taylor, Ohjo. Townsend, Colo. Townsend, Pa. Tracey. Tucker. Vandever. Van Schaick. Vaux. Waddill. Wade. Walker. Wallace, N. Y. Wiley. Willcox. Williams, Ohio. Wilson, Wash. Wilson, W. Va. Yoder. Republicans 96, Democrats 43, in all 139. VOTE IN THE SENATE MARCH 4, 1891, BY WHICH THE COPYRIGHT BILL WAS PASSED. (At 2 o'clock in the Morning.) Ytas. Nays. Aldrich. Bate. AUen. Berry. Chandler. Call. Dawes. Carlisle. Dixon. Casey. Dolph. Coke. Edmunds. CuUom. Farwell. Daniel. Frye. Faulkner. Hawley. Gorman. Hiscock. Gray. Hoar. Ingalls. Jones of Nevada. Kenna. McMillan. Morgan. Morrill. Pettigrew. Pasco.' Plumb. Pierce. Ransom. Piatt. Sherman. Sawyer. Walthall. Shoup. Republicans 6, Democrats 13, Spoon er. in all 19. Stanford. Stewart. ' Voted >first with the opponents : then changed his vote for the purpose of moving reconsideration. 4 412 THE QUESTION OF COPYRIGHT. Yeas. Warren. Washburn. Wilson of Iowa. Wolcott. Republicans 26, Democrats I, in all 27. THIE BEST BOOIKIS. A Reader's Guide to the Choice of the Best Available Books (about 25,000) in all Departments of Literature down to 1888, with the Dates of the First and Last Editions, and the Prices, Sizes, and Publisher's Name of each Book, With numerous Bibliographical Notes. With Copious Topical Index. Second Edition, revised and much en- larged. Pp. xxviii-1,200, Quarto, $9.00. By WM. SWAN SONNENSCHEIN. The whole work is divided into classes, each of which is sub- divided into SECTIONS, and again (where desirable) into paragraphs, systematically arranged. Class A. — Christianity contains 112 sees. Class B. — Non-Christian Religion, Myth- ology, and Folklore . . " 49 " Class C. — Philosophy " 65 " Class D. — Society " 92 " Class E. — Geography, Travel, and Ethnog- raphy " 56 " Class F. — History and Historical Biog- L ^itei RAPHY " 67 " Historical Collaterals (Antiqui- ties, etc.) . ' . . . . " 30 " Class G. — Biography (other than Historical) . " 33 " Class H. — Science " 95 " Medicine " 58 " Class I. — Arts and Trades .... " 156 " Class K. — Literature and Philology . . " 150 " ^* An arduous^ and useful labour successfully accomplished ; a work the like of which has not, in this country, been attempted. His system of classification and arrangement is excellent. . Let us take it that the student wishes to ascertain the best books upon the struggles with Charles I. and his Commons. He turns to the division of * History ' (f) ; a sub-division is * History of Europe ' (iv). Under F IV. he finds chapter xvi., ' History of England,' 1603-1655. 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The more the guide is examined, the more struck will the reader be at its thorough- ness." — Spectator, " A student who wished to study some particular subject will only have to turn to this volume, and he will find described in it all the books relating^ tojt which have any real value. The plan of classification is the distinctive principle, and constitutes its especial value." — Daily News. *' An excellent work, executed in a competent manner ; . . . the more we have looked at it, the better we have liked it." — AikentEUm, G. P. PUTNAM'S SONS new YORK LONDON FOR READERS AND BUYERS OF BOOKS. THE BEST READING. A Classified Bibliography for Easy Reference. With Hints on the Selection of Books ; on the For- mation of Libraries, Public and Private ; on Courses of Reading, etc. ; a Guide for the Librarian, Bookbuyer, and Bookseller. The Classified Lists, arranged under about 500 subject-headings, include all the most desirable books now to be obtained, either in Great Britain or the United States, with the prices annexed. New edition, corrected, enlarged, and continued to August 1876. By F. B. Perkins. i2mo, cloth $i 50 Second Series — Comprising the publications for the five years end- ing December, i88t. Edited by LyndsE. Jones. i2mo, cloth. $1 00 Third Series. — Comprising the publications for the five years end- ing December, 1886. Edited by Lynds E. Jones, izmo, cloth. %\ 00 Fourth Series. — Comprising the publications for the five years end- ing December, 1891. (In preparation.) i2mo, cloth . $1 00 " The best work of the kind we have seen." — College Courant. " We know of no manual that can take its place as a guide to th^ selection of a library." — N. Y. iTidependent. " Comprehensive, well arranged, and eminently serviceable:" — Boston Congregationalisi. ' " The best thing of the kind in existence, and a manual that one who has much to do with current publications and new books will not know how to dispense with." — N. V. Independent. '^ It is impossible to praise it too earnestly to the selector of a library, to public libraries, or to the book-buyer." — Boston Globe! HINTS FOR HOME READING. A series of papers by Edward Everett Hale, F. B. Perkins, H. W. Beecher, Chas. Dudley Warner, Joseph Cook, Lyman Abbott, M. J. Sweetser, Cyrus Hamlin, H. W. Mabie, and others. Edited by Lyman Abbott. Together with a new edition of " Sug- gestions for Libraries," with first, second, and third lists of 506, 500, and 1,000 volumes, recommended as the most important and desirable ; forming volume xviii. in Putnam's Handy-Book Series. i6mo, cloth, $1.00; boards .... 75 " We warmly commend this book for the guidance not only of book- buyers, but of readers. It will be found valuable for \^o^i^." —Boston Tran- script. THE READER'S GUIDE IN ECONOMIC AND PO- LITICAL SCIENCE. Being a Classified Bibliography, American, English, French, and German, with descriptive Notes, Author, Title, and Subject Index, Courses of Reading, College Courses, etc. Edited by R. R. Bowker and George Iles. i6mo, paper, 50 cts. ; cloth $1 00 " The little volume photographs in a most interesting way every existing means of education in American citizenship ; it will serve to advance that education by giving it trustworthy guidance.'* — Detroit Tribune. G. P. PUTNAM'S SONS, New York and London. QUESTIONS OF THE DAY. 48 — Bodyke : A Chapter in the History of Irish Landlordism. By Henry Norman. Octavo, cloth, illustrated ■ ■ • 75 43 — Slav- or Saxon : A Study of the Growth and Tendencies of Russian Civilization. By Wm. D. Foulke, A.M. Octavo, cloth . i oo 44 — The Present Condition of Economic Science, and the Demand for a Radical Change in its Metho(;ts and Aims. By Edward C. Lunti . Octavo, cloth 75 46 — Property in Land. 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Octavo, cloth, I 00 5"?— The Plantation Negro as a Freeman. By Philip A. Bruce. Octavo, cloth . . . . . . I 25 58 — Politics as a Duty and as a Career. Octavo,' paper . 25 59 — Monopolies and the People. By Chas. W. Baker. Octavo, cloth, I 25 60 — The Public Regulation of Railways. By W. D. Dabney, formerly Chairman of the Committee on Railways and Internal Navigation in the Legislature of Virginia. Octavo . . i 25 61 — Railway Secrecy and Trusts: Its Relation to Interstate Legis- lation. An Analysis of the Chief Evils of Railway Management in the United States, and Influence of Existing Legislation upon these Evils, and Suggestions for their Reform. Bj John M. Bonham, author of " Industrial Liberty." Octavo . 1 00 68 — American Farms : Their Condition and Future. By J. R. Elliott. Octavo, cloth . ....... I 25 63 — Want and Wealth. A Discussion of Certain Economic Dangers of the Day. An Essay. By Edward J. Shriver, Secretary N. Y. Metal Exchange. Octavo, paper . . 25 64 — The Question of Ships. Comprising The Decay of Our Ocean Mercantile Marine : Its Cause and its Cure. By David A. Wells ; and Shipping Subsidies and Bounties. By John CoDMAN ... . .25 65 — A Tariff Primer. The Effects of Protection Upon the Farmer and Laborer. By Porter Sherman, M.A 25 66 — The Death Penalty. A Consideration of the Objections to Capital Punishment, with a Chapter on War. By Andrew J. Palm i 25 ( The numbers omitted represent Monographs no longer in print.) G. P. PUTNAM'S SONS, Publishers, New York and London.