Cornell University Library The original of tiiis 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/cu31924029522426 Cornell University Library Z642 .J54 Publisher against the peopie, a piea for gainst the pi olin 3 1924 029 522 426 SUBJECT MATTEES. Page Introductory 1 Prohibition of Importation of Books written by Foreign Authors and printed and published abroad 13 'No interest entitled to protection is injured by Importa- tion of Foreign Books 25 Importation as personal baggage 31 Importation of ]^ewspa:pers and Magazines 33 The Travellers' and Public Librarians' expectations are liable to be disappointed 38 The penalties for unauthorized importation 40 The prohibitory provisions are not capable of being en- forced and must subsist as a scarecrow 44 Prohibition will prejudice many and profit only a few . . 48 Duration of copyright 50 A long term is not for the advantage of the People .... 55 A contingent term is unjust to the author 59 Abolition of the second term granted under existing law 60 Joint authorship 66 Copyright for posthumous works 69 Punishment of infringers Y6 Method of securing copyright 81 Practically perpetual copyright is secured 91 Perpetual copyright may be secured throiTgh the agency of corporations 96 Exoneration of an infringer who is misled by omission to give notice is deceptive 100 Copyright at common-law 101 Librarians' rules and regulations 103 PEEFATOEY NOTE. I wish to assure my readers that, in writing the following pages, T have, at least, been free from the bias of any retainer, and that I have no interest in the matters discussed in them, which is not possessed, in equal degree, by every man and woman in this country. Last February I hastily wrote, printed and sent to Members of the fifty-ninth Congress a short pam- phlet considering only that provision of the bill which prohib- ited the importation by American citizens of foreign printed and published copies of foreign author's works. Further study of the bill has disclosed other iniquities, some of them a'rtfuUy contrived and carefully concealed, which, as I understand the citizen's duty, makes it incumbent upon me to communicate my criticisms to the public. I am sensible how little my best ef- forts can accomplish towards staying the progress of a bill which has received the approval of committees of both Houses of Congress, although that approval was obtained by deceptive arguments, an inadequate presentation of the author's case, and no representation at all on behalf of the people. ISfevertheless, I do not despair of exciting some voice, more persuasive and far-reaching than mine, which, from the vantage ground of official position or of the press, will be heard. If I fail, I shall at least enjoy the consciousness of having done what I could, in the people's behalf, to prevent the enactment of a bad law. ISTew York, lyTovember, 1907. W. A. J. Introductory . A bill was introduced in the last Congress "to amend and consolidate the acts respecting copyright," which proposed pro- found and far-reaching changes in the existing law.-"- Its promoters had cunningly contrived that the bill, when presented for introduction, should have the semblance of a measure voicing a general demand and the public interest. It was the outcome of a series of conferences held during the winter and spring of 1905-6 in Washington and in the City of New York, ostensibly upon the invitation of the Librarian of Congress acting in his official capacity. The conferences were held by the Librarian, at least he so stated, at the sug- gestion of the Chairman of the Senate Committee on Patents, and so far as the suggestion was not solicited or encouraged by the Librarian himself, they were occasioned by a brief passage in the President's annual message which called the attention of Congress to the desirability of improving the copyright laws, but without mentioning any particular in which they seemed to need amendment. That recommendation of the message had been drafted by a New York lawyer with the aid or under the supervision of the Librarian and his brother the New York pub- lisher, and had been adopted by the President^ in the belief that his friendly counsellors were unselfish, and that their representations of the need of amending the law were true. The President is himself a voluminous author upon topics not connected with politics or government, and it could have been no difficult matter for his publishers to approach him on the subject of copyright and persuade him that the laws needed some amendment, and that the way to revision would be made more easy if the executive would lay the subject upon the 1 Sen. 6330. H. R. 19853. 2 I am quite certain that neither the Librarian nor his brother, the publisher, will deny this assertion. legislative conscience in the iisual manner, by a recommenda- tion in the annual message. Thiis high official sanction was secured in advance for the Librarian's proceedings without any publisher "appearing openly to have stirred in the business. Upon introduction the bill was referred to the Committees on Patents of the respective Hoiises, which in due course held public hearings. It was reported to the Senate and to the House with some amendments of moderate importance, but no legislative action was afterwards had upon it. I understand that the promoters of the bill intend to press it at the first ses- sion of the Sixtieth Congress. I believe the bill to have been wholly sefish in its inception and to be wholly bad in its scheme ; to be one which is not in the interest of authorship or of the people, and one which, when rightly understood, will not command the confidence or the ap- proval of the law-making body ; that its real objects are, firstly, to enable a small group of publishing booksellers to expunge from the existing law the liberty, which literary associations and individual students now enjoy, of importing from Great Britain for their own use books written by British authors for the English speaking world and published by British publish- ers, if a ~New York bookseller thinks it to his interest to secure a monopoly of the book for this country; and, secondly, to expunge the wise provision which for more than a century has secured to the author or his family the suitable reward of a second term of copyright upon the expiration of the first, and to secure that extension for themselves, so that no desirable book can be obtained by an American student, whether originat- ing in this or in a foreign country, except upon such terms, at such price and in such form as the American publisher may choose, and so that, if a book, whether of American or foreign origin, turns out to be a lucky hit for the American publisher, he may enjoy the continued advantage of his fortunate bargain, without any necessity of readjusting its conditions with the author or his family at any time during the term. These purposes are interlaced with provisions working changes in the law, which are alleged to be reforms, but are not so, and with the protection of interests not allied with authorship which should be independently considered, but the aid of which in furthering the scheme was sought. Under pretence of reform- ing the method of obtaining copyright, the bill conceals meana for depriving the Library of Congress of the usual copies of copyrighted books, and means for prolonging the copyright term far beyond anything contemplated by the Committees; and under another section, apparently harmless in purpose and reasonable in scope, perpetual terms of monopoly may be se^ cured. These are either objects or accidents of the bill, but they profit the publisher, not the author or the people. In ef- fect the bill robs the people and the author, and cheats Con- Before presenting criticisms and arguments which bear against the wisdom and propriety of enacting the proposed measure, I wish to submit reasons why the bill should be scru- tinized with extreme caution and suspicion. The Committees of the Senate and House of Representatives, which sat jointly during the public hearings, were, I believe, deceived. They were deceived by unjust and unfounded de- nunciation of the existing law, and were overwhelmed by the preponderating influences of the publishing and manufacturing interests, open or covert, which attended the hearings and which were chiefly heard. The Committees were, indeed, pa- tient and impartial in hearing all those who attended their meetings and manifested a desire to be heard, but Mr. Putnam, the Librarian, acted, as I derive from a perusal of the reports of the proceedings, as a kind of major domo to the committees, and it thus happened that the pablishing interests with which the bill was saturated at the time of its introduction, were sub- jected to no sufficient scrutiny, and they remained in the bill without material change. Mr. Putnam, the Librarian, stated at the hearing before the Committees of the two Houses in June, 1906, that his conferences "were not open, public meetings" but were of "organizations — ^that is to say, associations representing a "group of interests ;" that "the organizations selected" or "spec- ially invited" by him were those "having practical concern in "the amelioration of the law, but especially, of course, those "concerned in an affirmative way — that is to say, in the pro- "tection of the right."^ The Librarian might have avoided this jargon of words, only a small part of which is quoted, if he had said simply that he had invited and had been attended, in the main, by those associations and persons who, as purveyors to the public of published things, had a direct and immediate pecuniary in- terest in the suppression of competition with them in the sale of books, and in the extension of the copyright monopoly. Such a statement would have been, at least, distinct and in accord- ance with the fact. "The conference included" he said "those interests that "abroad are considered primary in such a matter^ — that is, the "creators of the works which are to be protected and the pvli- "lishars through whom the property in these becomes effective "and remunerative ;"^ What he knows about abroad, and who are to be included in "abroad," and the basis of his wide gener- alization, he did not venture to explain, but if, by creators of works, he meant the authors who write them, the list of the persons present at his conferences — a list prepared by himself, — fails to disclose the name of a single author who attended in his own behalf. The professional writers who did attend, and they were very few and with one exception of little dis- tinction as authors, claimed to represent associations, and were really the publishers' men. The Librarian seemed to have been aware of the nature of his work because he was "impelled to say" that "the bill is not a mere congeries of pro- "visions proposed by a selfish group, each member of which was "considering solely bis own particular interest."^ Oh, no, it was not that, because the selfishness of one group was neutral- ized by that of another, and he added "If some of the interests "were selfish in one direction, they were met by the selfishness 1 See Pub. Doc. Arguments before the Committee on Patents of the House of Representatives conjointly with the Senate Committee on Patents in June, 1906, pp. 3 and 4. 2 Ibid. p. 6. 3 Ibid. p. 16. "of others in another direction, and both were under criticism "from the general advisers and under the influence of the main "body." But he does not inform us who the general advisers were so that the public might form some estimate of the dis- interestedness of their criticism. The main body, we have his words for it, consisted of the "associations representing a group of interests" which contended with each other in selfishness. The "organizations" — the "associations of groups of inter- ests" were invited, he said "by the office," that is, by himself; they met in one of the chambers of the Congressional Library, and never before, at any time, in any place, I will venture t*) affirm, was such a convention of groups of interests gathered to ■ gether. From the mere fact of the invitation could be implied the object of the convention, and as the delegates of the groups of interests looked each other in the face, each conscious of the motive of his own attendance, they could not any of them re- strain the desire to make the most of such a glorious and un- usual opportunity. And thus the framing of the statute began. The Librarian presided. With his "general advisers" beside him, the book publishers behind him and the "main body" in front, he proceeded to harmonize the contentions of the "sel- fish groups." The conferences, he assures us, never passed out of his "control."^ Like Doeg in Dryden's poem, he "Spurr'd boldly on, and dash'd through thick and thin, Through sense and nonsense, never out nor in." One more quotation from the Librarian's address will show his point of view. He said "if the bill reveals some selfishness, "it is perhaps condonable. It is the selfishness of men trying "to protect their own property;"^ Yet, no human being had sought or is seeking to deprive any author, or any publisher either, of his property or of his right; the existing laws are entirely adequate to secure every substantial right to which either class can justly pretend — they have done so for more than a century — and no radical changes are needed to make more secure that which is not and never has been in jeopardy. The Librarian admits that his conferees were selfish, and con- 1 Ibid. p. 16. 2 Ibid. p. 16. doned their selfishness by the plea that they were protecting their own. If that were in fact what the conferees were about, then they were not selfish. But that was only a silly mode of expression. Rapacious would have been a more correct de- scriptive term, because they were trying to seize privileges at the expense of the author and of the people to which the conferees had no kind of right whatever. A conference thus organized and led was naturally animated by the common impulse of- securing all the exclusive privileges which might seem to be within reach ; the very number of the conferees, — the Librarian said there "were nearly thirty" of them,^ — afforded ground for hope, that by mutual encourage- ment and aid, eveiything within sight might be clutched, and when grasped, that it might be kept, and the opportunity aaid common object made each of the conferees, so long as he or his employer got his own share in reasonable measure, indiffer- ent to what anyone else might obtain, provided the bill was not so overloaded with enormities as to endanger the entire cargo. Mr. Fuller, a delegate from the N^ew York Bar Association, with a kind of left-handed logic, said of the bill to the Con- gressional Committees, "The bill is a compromise — It has been "stated that none of the interests are entirely satisfied. If "that is true it is the 6es^ kind of a bill."^ ' Mr. Arthur Steuart of Baltimore, a delegate from the American Bar Association, said that the Librarian's conferences consisted "of all those "who were interested in the production of copyrightable mat- "ter, with a view of trying to learn what it was that they want- "ed" and "everybody who was interested in producing copy- "rightable matter was asked to state in his ovm way, in the "fullest possible manner, what it was that he would like to "have; what kind of protection he needed; how far the exisi- '■'ing law falls short of giving him the protection he wants."^ Most prominent among the associations invited by Mr. Put- nam, the Librarian, was the American Publishers' Copy- right League, which was represented by Mr. W. W. Appleton, 1 Ibid. p. 4. 2 Ibid. p. 33. 3 Arguments before the Committees in Dec. 1906, p. 154. of D. Appleton & Co., its president, Mr. Charles Scribner of Chas. Scribners' Sons, its treasurer, and Mi-. George Haven Putnam-^ of G. P. Putnam's Sons, its secretary, tbose firms being book-publisbing and book-selling concerns in New York City. The inference that this association is a New York or- ganization may, perhaps, be drawn from the fact that it seems to be oflHcered by publishers from New York, and also from the fact that Mr. Ogilvie, a publisher of Chicago, who appeared at the hearings by the Congressional Committees on behalf of himself and other publishers of the same city, stated that neither he nor any other of the publishers of Chicago for whom he appeared had been invited to the Librarian's feasts.^ The American (Author's) Copyright League was represented by Mr. E. C. Stedman, Mr. K. K. Bowker and Mr. E. U. John son, also all of New York City. Mr. Stedman has, I believe some reputation as a poet and is the author of several volumes of prose criticism, and is an occasional contributor to the magazines. Mr. Johnson has written one or two books of verse, but as one of the editors of the Century Magazine,, the proprietor of which- is the Century Coiapany, a general book- publishing concern, whose president, Mr. Frank H. Scott, is also the president of the American Publishers Association,^ he seems to have been more closely identified with publishing interests than with authorship. Mr. Johnson also stated that he was himself a member of the Century Company,^ so that T am unable to infer from his business relations, as I can- not from what he said, that the cause of the authors was nearer to his heart than that of the publishers. The bill as it came from the Librarian's hand was satisfactory to him.® Mr. Bowker, the Vice-President of the Author's League, repre- sented the house of Harper & Bros, in England for many years, but is better known as the editor of the Publishers' Weekly. His interest in authorship can be inferred from that relation. 1 Mr. Putnam was the orfjanizer ' and is the chief executive of the League. 2 See Afgumerits before the Committees in Jime, 1906, pp. 3 and 4. 3 Ibid. p. 54. The American Publishers' Association seems to be a kind of Publishers' Trust. 4 See Arguments ditto, Dec. 1906, p. 38. 5 Ibid. p. 90. 8 although he has, I understand, at one time or another written some tracts on subjects of political reform. -"■ I suppose these gentlemen wish to be regarded as shepherding the sheep who compose their little flock of authors, who with ovine intelligence and docility follow their leaders, but, whether to pastures sweet and new, or to the publishers' fold, the reader may judge for himself. The American Bar Association and the Association of the Bar of the City of New York had been invited and had named committees, but most of the delegates appear to have manifested little interest in the proceedings, at least by their personal at- tendance, excepting Mr. Steuart and Mr. Fuller mentioned above, who attended one of the Librarian's conferences and both the hearings before the Congressional Committees. They were quite satisfied with the bill as it was drafted, and the latter said to the Committees "it is the best that could be had to protect and satisfy all the interests."^ I understand that the law firm of which he is a member is, or has been until lately, the counsel for a French firm Avhich publishes and exports to this country copyrightable photographs, engravings and prints. I do not suggest that Mr. Fuller was prevented by that circum- stance from estimating fairly the provisions of the bill. I may, however, remark that the shepherds who "shear the fleeces which they graze" may be supposed to be stimulated by that interest to greater assiduity in the care of their flocks. Mention of the other associations represented at the con- ference is unnecessary. A list of them is found in the pro- ceedings before the Congressional Committees.^ All of them, except the trades-unions, published something. Mr. Putnam, the Librarian, omitted to summon any repre- 1 Mr. G. H. Putnam included Mr. R. R. Bowker as a publishing house in his list of members of the Publishers' Copyright League (see The Question of Copyright, by G. H. Putnam, 2nd Ed. N. Y. 1896, p. 117). Mr. Putnam should know. At what date Mr. Bowker flopped over from the Publishers' League into the Authors' League I do not know. Perhaps he is amphibious and sports with equal zest in each element. 1 suspect that the Authors' League is a mere alias of the Publishers' League. 2 Arguments before the Committees in June 1906, p. 33. 3 Arguments, June 1906 Sessions, pp. 4 and 5 and Arguments, De- cember Sessions, pp. 21-23. 9 sentative of tlie people, and his admission "that the public was not represented at the conferences" ■■■ might be commended for its frankness, if he had not endeavored to sophisticate his reas- ons for the omission; but he naively excused it by saying that if the proposed bill "fails fairly to reg'ard that interest of the consumer," viz. the public, "its defects will surely be brought "to your attention by the third great estate which is jealoas of "those interests — the newspapers and periodical press ;"^ The meaning of this roundabout and curious phrase, I sup- pose, is that the newspapers and the magazines might be trusted to perform the duty of criticising a bill prepared by himself, or, at least, under his auspices, and of pointing out wherein it "fails fairly to regard" the interests of the public. Surely it was his duty, in the first instance, to prepare a bill which should fairly regard the public interest. What moral right had he to experi- ment with the Committees and the people, and see how many abominations could be stuffed into the bill which might escape detection and challenge by the Committees ? If he was con- strained to present a project which did not fairly regard the public interests, candor required him to point out wherein the bill was defective and to describe the overmastering influences which swerved him from his duty. He could not have been unaware that the magazines are mostly owned by the book- publishers themselves, and that the newspapers were not likely to procure copies of the bill or to study its thirty-six pages of complicated provisions. Did he send to the newspapers copies of the bill and draw their attention to the matters in which it might be thought to fail to regard fairly the public interest? If any newspaper or magazine up to the present date has expressed any understanding of the objects and scope of the bill, the comment has not come to my notice. Mr. Putnam, the Librarian, stated that the bill is "a copy- "right office bill," and that "the conference did not draw it, "nor did it by explicit vote or otherwise determine its precise "provisions."^ He does not inform us who- drafted the bill, but he is willing to be responsible for its provisions. Now, I will X Arguments, June 1906 Sessions, p. 17. 2 Ibid. p. 17. 3 Ibid. p. 6. 10 venture to doubt that he drafted the bill/ and to state my be- lief that so much of it as relates to copyright in books was drafted or at least supervised by the counsel for the Publish- ers' Copyright League, which is simply a book publishers' asso- ciation, and its secretary is Mr. George Haven Putnam, a brother of Mr; Herbert Putnam, the Librarian, and who was as constant in his attendance and as seriously active for the publishing interests at the conference meetings as any other of the persons attending. That he influenced the drafting or supervision of the bill seems to be highly probable, but whether he contributed to the notions which his brother, Mr. Putnam the Librarian, holds on the subject of copyright protection for publishers, and which are embodied in the bill, I do not know. But as the Putnam brothers collaborated in the draft of that clause of the President's message which recommended copy- right to the attention of Congress, I presume they shared their ideas as to what the upshot of the opportunity ought to be. The Librarian, defending himself apparently against a charge of conspiring with the publishers of music, said to the Committees that the book publishers were at the bottom of the bill: "and there is more reason to think this, Mr. Chairman, "because they had already sought these very benefits in a "separate bill introduced before these conferences were thought "of; and for the further reason that the Librarian of Con- "gress is brother to the secretary (Mr. G. H. Putnam, the "publisher) of their league. Undoubtedly the book publishers "were at the bottom'of this bill."^ which was a very lucid pre- sentation of his critics' case. The context leaves it somewhat uncertain whether that was said ironically or in a spirit of bravado. If the former, the irony is a little dulled by the old adage that there's many a true word spoken in jest. Conspiracy! I do not charge con- spiracy upon him, but if he can point to a single provision in the bill which improves the people's interest in the subject 1 Mr. Currier, the chairman of the House Committee, refers in his Report to "the gentleman who framed" the bill. If the Chairman had imderstood that the Librarian had framed the bill, I suppose he would have referred to him' by his official title. 2 See Arguments Dec. Sessions 1906, p. 31. 11 as compared with existing law, or a single opportunity of taking from the public and giving to the publishers which he missed, I will be glad to acquit him of the charge. From a convention so packed, so influenced and advised, it was inevitable that a bill should issue for the aggrandizement of the publishing interests, and the "Copyright Office bill" as submitted by the Librarian to Congress and introduced in the Senate and House was such a measure, pure, simple and unde^ filed.i The same interests were represented in force at, and the same persons attended, the hearings which were held by the Congressional Committees in June, 1906, and in December, 1906. At the latter hearings, of the eighty-four persons who are recorded as attending, all excepting about a dozen and ap- parently all who spoke, excepting the librarians and a few authors, represented some private publishing or manufacturing interest, and although they could not entirely agree as to the merits of certain provisions of the bill in which their personal interests clashed, they did agree in the policy of taking from the public whatever their private interests seemed to demand. Of the authors listed as attending, William Dean Howells, the eminent novelist, was present at one or more of the Decem- ber hearings, but did not speak. He must have looked with amused interest upon the scene as his practiced eye penetrated the thin disguises of the characters in it ; the Librarian bustling about with biisy importance, announcing the successive speak- ers like an iisher at a reception, or defending himself from charges of conspiracy on the ground of "prenatal influence at work" upon him — such was his phrase* — or urging his brother, the publisher, to speak on the "Importation clause which con- cerns the libraries;"* the brother coyly resisting the importun-. ity and inquiring with demure attitude and expression "would 1 Mr. Currier, the chairman of the House Committee stated that "during the preparation of it no Member of Congress was consulted" oi "knew anything about the bill until the time of its introduction." Arguments Dec. Sessions 1906, p. 29. 2 Arguments, December 1906 Sessions, p. 32. I suppose he meant that he was born so. I admit it. s Ibid. p. 53. 12 that be agreeable to the cbairman V How his eyes must have twinkled as he caught the chairman's assenting nod, and then, like a hound loosed from the leash, he bounds off with a speech which fills nearly five spacious octavo pages of small pica print, explaining why the libraries ought not to be allowed to import foreign books which are copyrighted here. As I read the printed words, I think his unction must have moved his hearers to feel that, unless the libraries could be deprived of their liberty of importing, the whole fabric of American literature would topple to its fall. It was a speech which the publisher had made, in substance, many times before, in season and out of season, and the matter of which he had sent to the Press in the form of letters over and over again, and had repeated to his acquaintances with wearying iteration. Did the Librarian know what his brother was about to say ? Had he been constrained by the indignant and unanimous pro- test of the libraries to frame the bill preserving to the libraries the liberty of importation, and did he hope that the speech would persuade the Committees to alter the bill so as to ex- clude foreign books in favor of the publishers, and against the libraries? It seems impossible to say. "For neither nian nor angel can discern Hypocrisy." There was nothing in the atmosphere of the occasion to excite Joaquin Miller, the poet of the prairies, to take sides with any of the contending selfish interests, but I think he must have shivered with mortification when he reflected that the cause of American literature had sunk so low. Dr. Edward Everett Hale, of whom no one can speak except with affectionate re- spect, remarked that his first copyright had expired eleven years ago.-"- May his active mind and graceful pen still pro- duce books to replace the copyrights which have lapsed, but his hope that "a class of men may grow up who are willing to de- vote their lives to research and to literature"^ will not be pro- moted by a law such as this bill proposes, with which he ex- 1 Ibid. p. 114. 2 Ibid. p. 115. 13 pressed his satisfaction although he thought he could draw a better one/ as no douht he could. Mr. Thomas Nelson Page spoke briefly in panegyric of American publishers but disparag- ingly of the English fraternity who did not seem to appreciate the dialect of "Marse Chan." Mr. Clemens. (Mark Twain) was present and also spoke. He contributed, at least, to the hilarity of the occasion by his fanciful costume, if he did not contribute to the wisdom of the deliberations, and, perhaps, that was all which was expected from him. Detaching Dr. Hale, the speaking authors did not form an impressive group. There was nothing which any of them said that was either sensi- ble in itself or to the point, and the spirit which moved Mr. Sousa, the band-master, to say that he could "compose better" music for a thousand dollars than he could for six hundred, seemed to pervade them all.^ Prohibition of Importation of Booics Written by For- eign Authors and Printed and Published Abroad. The main arguments for the prohibition of foreign books writ- ten by foreign authors and published abroad was made by Mr. Putnam, the publisher, and by Mr. Olin, the counsel for the Publishers' League. Their fallacies seem to have passed unde- tected by the Committees because no one attended to expose them. They intertwined and confused the right of an Amer- ican aiuthor to secure by an American copyright the monopoly of his work in this country with the right of an American citi- zen to obtain, without inconvenience for his own use, the work of a foreign author written, printed and published abroad and presumably copyrighted in the country of its origin. In the case of a book originating in the United States, that is, written by an American author, it is not unreasonable and may, in- deed, be very proper that the American author or his assigns, to whom the copyright in this country may be granted, should be protected against the competition, which would be apt to result or which possibly might result, if copies of the book printed 1 Ibid. p. 115. 2 Arguments June Sessions 1906, p. 31. 14 abroad could be imported into this country to be sold in com- petition with the original and native edition. But a book writ- ten, printed and published abroad, for example, by a British author and publisher, is on an entirely different footing. If such books may be imported by an American citizen or student, of 'iourse upon payment of the customs duty, no right of an American author is involved, the "progress" of American liter- ature is not impeded, and if the American publisher who has purchased the American copyright from the British author loses the sale of some copies more or less, yet the American publishers interests are not those which it was the intention of the Constitution to promote by the authority specifically giv- en by that instrument to Congress to secure by legislation.^ The American publisher's interests as a bookmaker and a book- seller should and may well yield to the superior interests of the American scholar, the student, and citizen, who may wish to obtain for personal and private use a genuine and authentic copy of the work of a foreign author produced under the lat- ter's immediate supervision, the text of which is issued to the world in the form exactly as he wrote and intended it. To grant this right is not imfair to the foreign author who will receive his profit upon the book, whether it is sold for perusal at home or is exported from his country, and is not unfair to the American publisher and purchaser of the American copy- right who will in the natural course of bargaining give a price for the American copyright diminished by the number of copies which may be imported from the country of origin according to the probabilities of the case. To deny the right is to deny a right which is enjoyed by the citizens of every other country on the face of the earth. Before 1891, a foreign author could not copyright his work in this country, unless he came here to reside. By the Act of March 3, 1891^ the privileges of American copyright were ex- tended to foreign authors, upon the condition, that the copies 1 Const. Art. I. Sect. VIII. subd. 8. 2 Act of March 3, 1891, see. 1 (26 Stat, at L. p. 1106) and see U. S. Rev. Stat. sec. 4956. IS of the book required to be filed in the office of the Librarian of Congress should be printed from type set within the United States or from plates made therefrom, and the importation into the United States of copyrighted books not made from type set in tbis coimtry was prohibited. The object of the requirement respecting the copies to be filed and the prohibition of impor- tation was to secure for the American mechanic, the typesetter, the opportunity of setting the type. But there was excepted from the operation of the prohibi- tion, books which at that time might be imported free of cus- toms duty, and which included books for the use of any philo- sophical, literary or religious society, or of any college or other "seminary of learning" in the United States; and there was also excepted books imported by any individual "for use and not for sale," and subject to the customs duty thereon, but, in either case, not more than two copies of such book could be im- ported at any one time.-^ Briefly, as the law is to-day, books prodiiced by foreign authors, printed and published abroad, may, notwithstanding ' an American copyright, be imported by public libraries and analogous establishments for their own use free of duty, and by private persons for use and not for sale, subject to the customs duty, but not more than two copies may be brought in by either a library or a private person at any one time. In excepting philanthropic and educational institutions from the operation of the prohibition. Congress simply observed the wise policy which had originally placed and had continuously kept their importations of books for their own use on the free list, and in excepting private persons, Congress recognized the obvious propriety of allowing American scholars, students and citizens to import for their o^vn use, subject to the established duty, the original works of foreign authors which they might deem needful in the prosecution of their studies. The proposed bill preserves the liberty of importation of foreign books by educational, literary, scientific and religious I 51st Congress, 1st session, chap. 1244; 26 Stat, at L, p. 604. Amended and paragraphs renumljered J'uly 24th, 1897, 55th Congress, 1st sess. chap. 11; 30 Sta. at L. p. 196, and U. S. Rev. Stat. sec. 4956. 16 associations, colleges and schools substantially as it now exists, restricting the privilege, however, to one copy only. But it takes awsLj altogether from the private person the privilege of iuiportation except "under permission given by the proprietor of the American copyright ;"-'^ The restriction of importation by such an association to one copy instead of two may have some shadow of a reason in its favor, and can cause the association availing of the privilege only the inconvenience of repeating its importations, but why prohibit the scholar and student from importing even a single copy? May not his need of an original and genuine copy of the foreign work be as great and as urgent as that of the person who resorts to a public library? Mr. Olin, who was described by the Librarian and who des- cribed himself as counsel for the book-publishers,^ attempted to defend the prohibition of importation by an argument^ which so ingeniously confounded the law as it now is with the law as it was before 1891 that it misled even the acute mind of Mr. Chairman Currier.* Mr. Olin made this statement:^ "We would be very glad, the copyright proprietors would be "very glad, and the public would be very glad if it could alto- "gether go back to that condition;" (i. e. the condition exist- ing before 1891) "that is, if you say books shall not be im- "ported without the consent of the copyright proprietor. The "copyright proprietor would then, as he did before, import "books and put them into the trade, and sell them freely." The confusion lies in the use made of the premise that before 1891 books could not be imported without the consent of the copyright proprietor, which was true only in respect of the works of American authors and had no application to the works of foreign authors, because the latter could not be copyrighted here and could be imported freely by anybody. Do the pub- lishers wish to go back to that rule ? Certainly not, and Mr. Olin argiied strenuously against it. 1 See Sec. 27 H. Il.,Bill par. (e) subd. (1) and (3). Sen Bill. See. 26. 2 Pro. before the Senate and House Com. June, 1906, pp. 4 and 33 3 Ibid. p. 36. 4 Ibid. pp. 36, 37 and 40. 5 Ibid. p. 40. 17 As before 1891 an English author's work could not be copy- righted in this country at all, neither by himself nor an as- signee, unless the author came here to reside, which seldom occurred, therefore American publishers sometimes reprinted the English work in a cheap form, and, if they were general booksellers as well as publishers, as many of the publishers in New York City were, they imported the English books freely, often siibstituting a title page of their own and naming them- selves as the publishers. Every individual could also import as freely as he wished, but the individual seldom did, because he could place his order with a dealer here who would import for him. In the case of the copyrighted work of an American author no foreign made copy of the book could be imported either by a library or a private person without infringing the copyright. There was no occasion for any express or special prohibition of importation. Wherever and whenever discov- ered during the term of the copyright the imported American author's book was liable to prosecution. As before 1891 there was no requirement that the type should be set in this country, and no prohibition of importation, American publishers and copyright owners sometimes imported foreign made copies of their own copyrighted books for the general market, but this must have been to only a slight and negligible extent, unless the American Publishers are willing to concede that a book can be so much better made and made so much more cheaply in Eng- land than here, that it was worth their while in the interest of economy to have their books made in England and pay the duty on importation, rather than make them here. Mr. Olin was, therefore, quite correct in the statement^ speaking of rights as they existed before 1891, "There could be no importation of the copyrighted article from abroad with- out the consent of the copyright proprietor," if it is understood that this applied only to the works of American authors copy- righted here and not to the works of British authors at all. But when he added^ that "As a matter of fact, it was to the "interest of the copyright proprietor to bring in, I will say, 1 Ibid. p. 36. 2 Ibid. p. 36. 18 "the English edition of the book which he was publishing here, "and to sell it," and in answer to the question of Mr. Currier whe^^^hev there were any importations of such books, that "There were, by the copyright proprietors, who put them on "sale and sold them through the trade," I challenge the state- ment, if it was meant to be applied to copyrighted works of American authors, and the context indicates that the intention was that it should be so understood. It was not to the interest of the owner of the copyright, the American publisher, to sell a foreign made edition in competition with his own edition; it was not to the interest of the buyer to pay a higher price for the foreign edition of the American work which was probably only a reprint of the American book and had no feature to recommend it, the American edition being the original. When in 1891 the right of American copyright was extended to the works of British authors, without any requirement that the British author should reside in this country, the right of the public to import British books was liable to be very serious- ly affected. The American copyright of the British author's work would keep out all importations of the original British edition as infringements of the American copyright, unless the statute should save the right of importation. The statute did save the right. The statute recognized clearly and fully the propriety of permitting any one to bring into the country copies of the foreign edition, that is, copies of the book printed in the country of its origin. The right of free importation was continued to those public institutions which already en- joyed an exemption from the customs duty, and it was ex- tended to individuals, on the payment of the duty, but in both cases it was limited to not more than two copies for use and not for sale. Congress recognized the impropriety of taxing public institutions, such as libraries for the sole benefit of the American publisher, when it was itself willing to remit en- tirely the duties upon such importations, and also recognized the propriety of enabling the private person to import the book, subject to the payment of the duty, if he wanted the foreign book for himself, and his desire was strong enough to 1 Ibid. p. 36. 19 move him to the trouble of making the importation, and to in- cur the extra cost. Mr. Olin consoled the American student for the loss by the proposed bill of his right to inaport. a foreign author's foreign made book with the assurance that the American copyright ovmer and publisher of the foreign book will be only too glad to import for him a copy of the English edition if he wants it, and described the "practical working" of the scheme. ■'■ But he forgot that the proposed bill forbids the American copy- right owner and publisher from importing at all. All he can do is to permit the private student's personal importation. Congress when filming the Act of 1891 did not deem it safe to allow the American copyright owner to import, and that Act does not give him that right. Mr. Olin thought that per- mitting public institutions to import two copies of a foreign work is liable to abuse, and that librarians are under the con- stant "temptation" to import one book "for the legitimate use of the library and one for some other use,"^ that is, for sale. On the same view of human nature, the American copyright owner or publisher, if he were permitted to import the foreign book, would be under a constant temptation to import two copies, one upon the order of the private scholar, and one for "some other use" to the disparagement of the American type- setter and printer. Mr. Olin's illustration of the "practical working" of the matter is, therefore, inapt, and it must become, if the proposed bill is enacted, a matter of bargain between the private citizen who wishes to import, and the publisher who owns the Ameri- can copyright, how much the latter will extort for the coveted permission, if he is willing to grant the permission at all. , Mr. Olin's argument knocked its head against another of his arguments, by which he refuted himself. He thought, or at least said, that with a prohibition of importation by the pri- vate person, except by permission of the American copyright owner and publisher, books would be imported by individuals 1 Ibid. p. 40. 2 Ibid. p. 38. 20 "habitually, and to a much larger extent than at present;" and "the facility with which the individual would obtain an "English edition of an American copyrighted book would be "greatly increased" and the American publisher "would be ex- "ceedingly glad to import that book for A. B. C. D. and E. all "over the country, and to make it just as easy as it was possi- "ble to do for them to get that English edition."^ Mr. Olin's sophistry did not seem to convince Mr. Chairman Currier. He also argued in favor of the prohibition of impor- tation by individuals on the ground that the liberty of impor- tation which these private individuals now enjoy restrain Amer- ican publishers from producing expensive books " with a very limited circulation," books "of a scientific character," books "illustrated with plates."^ These are the books, he said, which "the libraries and the colleges, and these individuals who are particular about their libraries" are wont to import. If the present liberty of importation is replaced by a prohibition, the American publisher, he thinks, will copyright and reprint the work for the American public. What then will become of the American publisher's market, if, after he has reprinted and published the foreign work, the individual "particular about his library," or the student of science and "A. B. C. D and E all over the country" shall request permission to import the gen uine foreign work, and the American publisher "gladly" im- ports a copy for him. Is it not more probable that the pre- diction of Mr. Ogilvie, a publisher of Chicago, who seemed to know the tricks of the trade, would be realized. "In regard to importation, he (Mr. Olin) said that Scribner "would be very glad to import a book if he were requested to do "so. ISTow, I am a publisher, and if it were my book I do not "think I should be very glad. I think I should tell the intend- "ing purchaser that I had a copy of the book that was at his "disposal for the fixed price that I had placed upon it, and I "think Scribner would do likewise."* The publishers who put forward a spokesman to express 1 Ibid. p. 39. 2 Ibid. p. 40. 3 Ibid. pp. 37 and 38. * Ibid. p. 53. 21 their willingness to import for individuals English boolss in competition with their own were insincere; these arguments were "springes to catch woodcock." And Mr. Olin's argument that the liberty of importation by private persons prevents the reprinting in America was worthless, because he admitted that the number of persons who import from abroad for their own use is unknown and he thought that they must be very few.-"- Not only was his argument worthless for the reason stated, but also because the American publishers do not and cannot produce such books as he mentioned, except, if at all, at such a cost as to be beyond the ability of buyers in remunerative numbers to pay. Why should "expensive books," be made un- necessarily expensive to the buyer ? Shall we tax knowledge for the benefit of the publisher ? That has not been the policy of the government hitherto. The law now imposes a duty of twenty' five per cent upon imported books, but new books for libraries and analogous institutions and books more than twenty years old are admitted free. The rate on new books is low com- pared with the tariff on most other manufactures, and re- specting the latter there is no discrimination in favor of an- tiques. Why the difference? Because government wishes to give moderate protection to the American manufacturer of books and at the same time to cheapen the dis- semination of knowledge by books, and to accomplish both objects, it levies a moderate duty upon new books only, and exempts public institutions even from that. If "expensive books" can be imported and sold here more cheaply than our reproductions of them can be sold, assuming the latter to equal the originals in quality, why should the importation be pre- vented? If any benefit were to accrue to authorship, home or foreign, or to any other interest, except the manufacturing interest, my conclusion might be criticized. I cannot think that Congress will knowingly be willing to impose an addi- tional tax beyond the revenue duty on "expensive books," "scientific works," "books with plates" originating abroad merely for the private pockets of one, two or three petty book- 1 Ibid. pp. 37 and 4i 22 makers. Assume, for example, a French work on architecture, or a German work on engineering, or an English work on phy- siology containing expensive plates, ■'^ and that either of the foreign made books ' can be imported here by students in those sciences, duty paid, at a cost of ten dollars the volume. To I'eset the type, re-engrave the plates, and re-make the book for the limited Am.erican market (Mr. Olin's argument re- lated to "expensive books with a very limited circulation") would place the price to the student, only a reasonable profit included, at twenty dollars the volume. Would it not be better for our own people and the students of those sciences, that there should be no American copyright at all on those books, and. that a dealer should be able to import as many as he can sell at the lower price. The author would not be injured, but benefited rather, infringement by a cheap reprint would be most un- likely, and the importing bookseller would reap the profit which otherwise would go to the printing publisher. Nevertheless, if an American publisher should wish to pur- chase the copyright for this country and to reset the type and remake the book for a cheap American edition, which could be sold for less than ten dollars, the law permits and secures it, and there might be some advantage in his doing so, both for himself and for those persons who cannot afford to pay the higher price for the better made foreign book. But all. that constitutes no reason why the person who can afford to pay the higher price should not be at entire liberty to im- port the better and original book, if he wishes to. That the better made book should be brought in by as many as could afford to import it would also be to the advantage of the people at large. In most cases the American reader is contented to purchase and to read the American copyrighted reprint of the foreign book, but there are exceptions to the rule. The student may wish the genuine and original book, printed imder the au- thor's siipervision, and in the form of its issue by the foreign publisher. For example, the Map of Life by Wm. Hart- 1 Mr. Olin's illustration. 23 pole Lecky, the English historian, was published in England in a handsome octavo volume, well printed with large clear type on rag paper. The book was copyrighted in this coun- try, but the American edition was a much smaller book, printed with smaller type, on inferior paper and from stero- typed plates, which might be used to print an English cheap edition when the demand for the "Library" edition should fall off. The paging of the American edition did not corre- spond with the English edition. A more recent ease is the Life of Charles Lamb by E. V. Lucas an English author, and the editor of Lamb's Woi'hs and Letters. It is small praise to say that Mr. Lucas' edition of the Works and Letters is, because of the voluminous notes, much the best which has thus far been produced. They are contained in seven octavo volumes. The notes were copyrightable in this country but were not copyrighted, and instead, the firm of G. H. Put- nam's Sons imported an edition, placing their own name on the title page as the publishers. The two editions were alike excepting that the American had a spurious title page, and the public were, of course, free to buy either. The Life, however, in two ' volumes, uniform with the Works, was copyrighted by the Putnams, arid although the make-up of the American edition is not, perhaps, notably inferior to that of the English edition, it is differently paged and the num- bering of the chapters in the second volume is different. AVhether changes have been made by the American printers and piiblishers in the text or the illustrations can be ascer - tained only by a laborious comparison which I have not had tlie time to make. It is not the genuine English book as it issued from the press of the country of its origin, under the supervision of its author. It may be, for many purposes and for most readers, as good as the original publication, but it is nevertheless a counterfeit. A later ^vriter may wish to quote from the earlier work and in so doing to refer to a particular page. For that piirpose he desires the original and genuine edition so that the accuracy and fairness of the quotation may be verified by his readers without inconvenience. If the American edition only is available, then he is restricted to 24 that, and while his American readers may have that, his foreign readers will not, and confusion and inconvenience necessarily results. Nothing obliges the American piiblisher to print the work of the British author without omissions and expurgations, additions and alterations. Having bought the copyright, he may edit and change it as he deems fit. Abridgements are not uncommon, and if the American publisher should feel that there might be less or no profit in printing the complete work, he would not hesitate to abridge, but the scholar wishes the book as it left the author's pen without curtailment or alteration of any kind. The proposed bill itself concedes the propriety and neces- sity for the importation by private persons of a copy of the original and genuine foreign edition, because the bill pro- vides that such importation may be made "under permission given by the proprietor of the American copyright"^. At first blush that may possibly appear to some persons to be reasonable, but the American copyright owner is not obliged to grant the permission, and if it is given, he himself prescribes the terms of the permission ; he will charge whatever he thinks the business will bear, and at least recoup the loss of profit on a sale of a copy of his own edition as well as exact a bonus on the book which is to be imported. He becomes a judge in his own cause. ~No one need expect liberality from his hands.^ 1 See Proposed Bill, Sect. 27 H. R. Bill, par. (e) subd. (1). Sen. Bill, sec. 26. 2 For example, ai) edition of the collected works of Robert Louis Stevenson, styled the "Edinburgh Edition" was begun in England in 1894; it was to consist of twenty volumes, afterwards increased to twenty-seven volumes, to be published monthly; it was to be edited by Sidney Colvin, Stevenson's friend and correspondent and himself an ac- complished English author; the edition was to be limited to one thou- sand and thirty-five sets and the owners of the various copyrights in England combined so that the edition might be complete. Four of the boolcs were copyrighted in this country, one of them with doubtful legality, and two of the four were owned by the firm of Chas. Scrib- ners' Sons of New York. No dealer could import a set of the books "for sale" because four volumes of the set were copyrighted in this coutitry, and a private buyer importing "for use" took the risk of the twenty- seven separate volumes coming through the mails safely at suc- cessive intervals, and subscriptions were required by the publishers to 25 No interest entitled to protection is injured by importation of foreign booi(S. Who is to derive an advantage from the prohibition of importation by the private student for his own use v^hich shall compensate for the disadvantage to him, and who is in- jured by the law as it now is ? i The foreign author cannot complain if he is interested by way of royalty in the sale of his book; his English publisher cannot complain, because his sales are increased by the num- ber of his exports. The American publisher has no just grounds for complaint, because when he buys the American copyright from the foreign author or publisher, he buys sub- ject to the right of importation free of duty by libraries and by private persons subject to the duty, and this possibility of a competitive supply diminishes the price which he pays to the foreign author or publisher for the American copyright, so that he does not suffer. Moreover, the copyright laws are not made for the publisher's advantage. He is the mere in- strument by which the author is rewarded and can claim noth- ing in his own right. But in any event the private person importing for his own use and not for sale, paying the retail price in London and the ciistoms duty of twenty-five per cent and the postage besides, must diminish only slightly the American copyright owner's sales of his own edition. Mr. the complete set. The books were well printed on good paper and plainly bound in simple buckram. The English price to subscribers at the time of issue was twelve shillings and six pence the volume. The Scribners were the selling agents in this country and their price to subscribers at issue was six dollars the volume, or exactly double the English price. , Assuming that the Scribners took two hundred and fifty or three hundred sets of the edition and obtained a trade wholesale dis- count of twenty-five or thirty per cent, then, after paying the duty of twenty-five per cent upon the cost price and all charges for freight, the books cost the Scribners less than three dollars the volume. Any dealer might have imported for sale the entire set excepting the four volumes subject to the American copyright which he could not import for sale at all, and have sold to his customer at $3.75 the volume, at the rate of thirty cents to the shilling, and have made a profit by the dealer's discount, and any private buyer could have im- ported the entire series for the same amoimt and have paid the duty if he had been willing to risk safe carriage in the mails. The result was, on the basis of my assumption, that the American buyer was taxed $2.25 on each of the twenty-seven volumes, $60.75 on the set, to satisfy the demands of the American copyright owners of four volumes. 26 Olin, the counsel for the book-publishers/ admitted at the hearings by the Senate and House committees that they did not know to what extent books written, printed and published abroad, but copyrighted also hero, were imported by private buyers. He said: "How far individuals have availed themselves of their "privilege it is impossible, or at all events would be difficult, to "tell ; probably not to any great extent. The number of men who "care so much for an English edition of a book that they are "willing to write for it to a London bookseller and import it "thomselves is not very large."^ The number must, indeed, be small because of the additional trouble, expense and delay involved in procuring the foreign book. But if the num- ber is small, those who compose it are select; they are the scholars who demand accuracy, and insist upon applying to the source of things for their knowledge, and the booklovers who insist upon obtaining original editions and well made books.^ The invention of printing cheapened the multiplication of books, and made the acquirement of them possible by the poor studeiit as well as by the rich amateur. Ever since, books have been coveted and sought with a passionate ardor not less than that which spurs the pursuit of any other cherished ob- ject of ambition ; by some for their rarity, by some for the excellence, taste and beauty of their workmanship ; by some for the entertainment or exaltation of spirit derived from ab- sorbing the thoughts of the author. Books cheer the despond- ent, beguile the invalid, confirm the doubtful, solace the solitary, inform the unenlightened, and the possession and use of books seems to be one of the most innocent pleasures which can employ the time or engage the thoughts. It is natural that the lover of books should prefer, if the book has 1 Proceedings before the Senate and House Com. June 1906, pp. 4 atid 33. 2 Ibid. p. 37. 3 The publishers seemed inclined to sneer at those who are par- ticular" about their books. A sneer for that cause appears to me to be as inappropriate as a sneer at a lady for being particular about her teeth, or at a gentleman for being particular about his linen. 27 been written by an English author, in English air, has been printed on an English press and first published to the English world, a copy of the English edition. Its title-page bearing the English imprint seems to certify that it is the author's real work ; that it comes before the world in the dress he would have it wear; that the matter of it is exactly as he wrote it; that the voice it speaks is really his. It is possible that the American copyrighted edition has changes in the text. It is probable that the type, is not as large nor as clear, that the paper is not as good, that the margins are not as liberal, but such considerations, although they have weight and accumulated weight when they occur, are sometimes, although seldom, ab- sent. Even if the American book is well made, still the book- lover wants the English book, because that is the genuine work, and all others are more or less spurious imitations. But the soul of the Librarian was unmoved by such consid- erations or his nature had not been "ameliorated" by inter- course with the books under his care, and was unsubdued to the elements he works in. He, the custodian of a great li- brary, one of the greatest in the world; he, who spends the people's money every year in acquiring precious editions of great authors; he, who, if he knew any value of a book other than its price over the counter, could in the stately halls of his library summon such levees as no president or king ever held; Tie proposes to prohibit the importation of foreign books except under permission. Did he suppose, do the publishers suppose that anyone would stoop to ask permission to do that which a citizen should be able tO' do as of his own right, to urge the reasonableness of the grounds of the request, to bargain on the terms of the permission, and to encounter at the end an absolute and curt refusal or a permission on condi- tions irritating and unjust ? Is an American scholar, an earn- est student, a self-respecting lover of books to go to G. P. Putnam's Sons, cap in hand, "bending low, in bondman's key, with bated breath, and whispering Humbleness" and crave leave to import a foreign book? Imagination recoils in dis- gust and indignation from the thought. Will an American Congress for thfe purpose of gratifying a publisher's greed re- 28 quire an American citizen to stoop to that? Not unless all the manhood has been leached out of the American charac- ter and all our national virtues have become extinct, and we have no impulses, no sympathies left except for dirty gain. Such a prohibition, if enacted, would make defiance legiti- mate and smuggling respectable. Double the duty on the foreign book if you will — ^you have the power — quadruple it and make it cent per cent, if you think it good policy, but do not compel me to crave permission to pay a tax into a private pocket. Every person, not in the trade, whose attention I have called to this prohibitory provision has shared my indigna- tion. It is pitiful that any piiblisher of books should have been found to desire it. JSTarrow must be the mind, petty and sordid the soul which for the possible gain of a few pal- try dollars could sink so deep as to covet the power of forbid- ding the private scholar, student or lover of good books from freely acquiring the book of his choice. Suppose that the American edition is exhausted and the American publisher refuses to reprint because the demand for the book may not be large enough to Justify a second edition, what then is the American scholar to do ? He may wait until he finds a copy upon the stalls of the second-hand book shops, or he may haunt the auction rooms until he chances upon an opportunity to purchase, or, reluctantly, pocketing his pride, he may ask permission to import a copy of the foreign edition, which he learns is available. The publisher may re- fuse the permission altogether, or grant it upon shameful terms, or put him off by saying that he is thinking of getting out a new edition, or that he expects himself to import copies when his buyer comes across them in England. Such replies are possible and highly probable, because the power to pro- hibit importation by refusing permission is coveted with the full and settled intention of exercising the power. The publisher regards his own interests first and is not averse to making money in small sums. For example, the house of Put- nam is various in its industries ; it publishes books and publishes a magazine; it has a branch house in London; it sells the books 29 of other publishers at retail; it deals in second-hand books; it does its own printing and operates a press ; it does job printing ; it deals in stationery, and during the Christmas holidays in fancy goods in a limited way. The sixpence must be nimble indeed that can escape the Putnam till. Will that concern grant pel-mission to import a foreign book which would sup- plant its own? Never. Suppose that the owner of the copyright cannot be found or is abroad, or is in bankruptcy, or is an infant, or lives at a distance, what is the person who desires a copy of the English book to do in any of those cases? The answer, of course, is obvious, that he will do without, and when the penalties of unauthorized importation are considered, as shortly they will be, he miist do without or smuggle. Is such legislation in the interest of the people or of authorship or of scholarship? I say emphatically it is in the interest of none of these, but is solely in the interest of a manufacturing guild. This is not a publisher's question ; the piiblisher has no rights to be protected. The constitutional provision was not ordained for his benefit. He is merely a purveyor of goods, a buyer of manuscripts, and a printer and seller of books. He is con- trolled by the laws of trade. His first business is to ascertain the likelihood of a demand, the probabilities of its extent, and then to buy as cheap, and sell as dear as he can. He conducts his business to grow rich through his bargaining. He buys manuscripts as he buys unprinted paper and types and ink. If he does not always screw the author down to the lowest price and the public up to the highest, it is because an enlightened selfishness dictates at times the prudence of a more liberal policy towards his producer and his consumer. They are like merchants of drygoods. They have their experienced, readers as the others have their experienced buyers, whose business it is to determine the salable quality of the article offered to them. Sometimes the excellence of the thing may be relied on, and sometimes the author's name, like the manufacturer's trademark, is a sufficient assurance. Sometimes they buy the manuscript outright as matter of speculation, and sometimes they merely print and sell on a royalty as the merchant, does 30 on a commission. Both lines of enterprise are, of course, en- tirely honorable and proper in the same degree, but neither is a field of commerce which is entitled to any other special pro- tection under the laws than that Avhich the police affords.^ Tt is not an author's question. American authorship would not be benefited by prohibition of importation of the foreign work, nor would foreign authorship be injured by the absence of it, because if the foreign work is of a nature to compete with the work of an American author, the competition will not be less if the foreign work is printed in this country and im- portation of the foreign edition is prohibited. It is a matter solely between the American publisher and the American peo- ple. Shall the American publisher be enabled by an illiberal law to make a few dollars more where he has not toiled, neither has he spun, or shall the American reader be able to obtain the foreign Avork in its original and authentic form, if he de- sires it, and without humiliation? No American author of eminence and character has advocated or will advocate pro- hibition of importation, and if any author shall, it will be be- cause he is in the servile and poor-spirited class of writers who are willing to sell their pens to any cause. We are still, as we always have been, largely indebted to British authors for our best books. In science, philosophy, his- tory, belles-lettres, poetry and fiction, we should be poor indeed if they had not poured into our intellectual life in a continuous stream the fniits of their scholarship and fancy. And still new books and new editions of old books newly edited come to 1 Thus far I have not distinguished between the permission of the American publisher and the permission of the American copyright pro- prietor, the latter being that mentioned in the bill, because in the case of a foreign work, the American publisher will inevitably be either the proprietor of the American copyright or control . it with a proprietary interest. If he could not control it, he would not incur the cost of remaking. In a subsequent section (post p. 86) I will show that under the ingenious provisions of the bill there will be no necessity whatever for making public the residence of the copy- right proprietor, and that the copyright will most probably be taken in thp name of a dummy. If that expectation should be realized, and I invite my readers to consider that aspect of the bill, and judge for themselves, the obtaining permission of importation will be next to im- possible.- The publisher who alone will be known will simply say to the applicant: "I do not control the matter. The copyright owner forbids my disturbing hira with such applications." 31 us in a steady stream to inform and to delight. Is it wise to establish a blockade against the importation by the private scholar and student of foreign books? Is it wise to put it in the power of a little coterie of New York dealers in books and fancy goods to fix the price at which the world's literature shall be furnished to us ? American works let them continue to control. There seems to be no way of regulating their prices as to those without doing more harm in some other di- rection, but let the people import from other countries the in- tellectual productions of those countries, for such knowledge and delight as they may afford, freely and subject only to such a tariff for the benefit of the entire people as may be deemed di&'- creet, but not subject to one cent of tribute to a publisher. If a private person can import a foreign book for use and not for sale upon paying the duty of 25 per cent or such other duty as may be established, the price of the copyrighted Amer- ican edition of the same book will be fixed to the American purchaser at not much above the cost of importation of the foreign book. This would be a wholesome and desirable regu- lation of the American price. The librarians of the various public libraries urged their oum exemption from the prohibition on precisely those grounds, and the Committees appreciated their reasonableness and heed- ed them. "Why should not the interest of the private citizen be regarded with equal solicitude? The cost of a book to the buyer is a matter of discount from the regular price. The pub- lisher can give a large discoimt to a library as an inducement against importation, and will give no discount at all to the private person because the latter cannot import. If the pri- vate person can import, the publisher will make a discount to him also as an inducement to buy the American made book- not as great, of course, as to the library, because the latter is exempt from tariff charges,^ but enough, unless the private buyer insists upon the foreign book for reasons other than the price. Importation as Personal Baggage. The proposed bill allows copies (without restriction as to 32 number) of foreign books of foreign authors, although copy- righted in this country, to be brought in when such books "form part of the libraries or personal baggage belonging to "persons or families arriving from foreign countries, and are "not intended for sale.'"- The result would be that a rich student or amateur of books, who can afford to go to Europe every year, and many do,^ could from time to time direct his London dealer to buy for him such English books and in such quantities as he may desire, and accumulate them, and, on his return bring them in as part of his personal baggage. True he may not sell them, but, after stocking his own library, he can give the duplicates to or exchange with other rich amateurs who may enjoy his acquaintance. Mr. Morgan, the rich bank- er and amateur, will snap his fingers at the proprietor of the American copyright, but the poor scholar and the poor amateur must humbly solicit from the same proprietor permission to import by mail a single copy and, at the end, be repulsed with , derision from the door. Is that justice ? I ask, with all pa- tience and respect, is it even decent ? Is it equality before the law ? Yet this discrimination was presented by the Librarian, his conferees, and "general advisers" to Congress, and was adopted by the Committees, of course without perceiving its import. Be, at least, impartial. If the publisher must be assisted, no matter what the convenience and interests of the people may be, prohibit the importation of foreign books in personal bag- gage as well as by mail, except under permission. Compel the traveler in Europe to cable to the American copyright proprietor, if he can find out who he is,^ for permission to bring in his grip-sack the foreign made book of a foreign author. Let him lose the cable toll; he can afford it. Furnish to the baggage examiners on every steamship pier and at every gate- way on our frontiers lists of copyrighted books with instruc- 1 Senate Bill, sect. 26, subd. (e) clause Fourth. House Bill, sect. 27, ditto. 2 For example Mr. J. P. Morgan, the banker, is well known as an amateur of books as well as of art and he goes abroad every year. 3 1 explain later that this is likely to be impossible (see post, p. 86, et seq. ) . 33 tions to pounce upon and seize every foreign book, newspaper and magazine and hold tliem until the traveller can establish their innocence, or, in default, destroy them.^ Let us be impartial and thorough in our meanness. Importation of Newspapers and Magazines. Section 26 of the Senate Bill (Sect. 27 House Bill) con- tains another gem vs'hich must surely have been faceted by the Putnam brothers without much help from the "general ad- visers." It provides that "during the existence of the Amer- ican copyright in any book the importation into the United States" "of any copies^ thereof (although authorized by the author or proprietor^) which have not been produced in ac- cordance with the manufacturing provisions specified in Sec- tion 14," that is, have not been produced from type set or by nrocesses conducted within the United States "shall be, and is hereby prohibited:". But the prohibition does not apply "to a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by author- ity of the copyright proprietor* unless such newspaper or maga- zine contains also copyright matter printed or reprinted with- out such authorization." The legal inference is that, if the newspaper or magazine does contain copyright matter printed or reprinted "without such authorization" the importation is. prohibited.® Did "the spirits of the wise who sit in the clouds and 1 If a book is suspected, the burden of establishing innocence- is cast upon the importer ( see post, p. 40, et seq. ) . 2 A single copy wo«ld be within the spirit, though not within the letter. 3 Whether the proprietor of the American or foreign copyright of the book is intended is not indicated, but the distinction is not material to the present point. 4 Here again it Is not mentioned whether the proprietor referred to' is the proprietor of the American or English copyright. ^ I suppose the American copyright proprietor is here meant, because the Librarian and his "general advisers" could hardly have been so stupid as to have imagined that it was practicable to ascertain, respecting every or any importation, what authority had been given by the foreign author or proprietor. 5 The inference is also compelled by Sec. 3 of the bill by which the copyright is made to "protect all the copyrightable component parts of the work copyrighted." 34 mock us" ever laugh at anything more supremely ridiculous ? Here is an illustration of the operation of the provision: Mr. James Bryce after returning home writes a book of his observa- tions on American life and copyrights it in England where it is first published. G. P. Putnam's Sons purchase the American copyright and publish the book in this country at the end of the sixty days of ad interim copyright afforded by Section 15 (Senate Bill)^- Mr. Cunningham Grahame, a forcible and skilful English writer, who does not like us, writes a review of the book and for the purpose of controverting the author's amiable compliments, quotes liberally from it without Mr. Bryce's permission, or beyond the limits of legitimate quota- tion with his permission. The article is printed in the English Contemporary Review. It did not occur to Mr. Cunningham Grahame to ask G. P. Putnam's Sons for leave to quote liber- ally from the book as he was writing for an English magazine. The importation into this country of the Eortnightly Review containing the article would be prohibited under Section 26, and under Section 25 (Senate Bill)^ the postmaster would be obliged to transmit the magazine to the Collector of Customs, who would be bound to detain the same in his custody and noti- fy the addressee of the package and require him to show cause why the magazine should not be destroyed, and, the facts being found as assumed, the Secretary of the Treasury would be bound to direct the manner of its destruction, unless, under Sec- tion 23, the addressee should claim it and give a bond to pay the costs and expenses of the condemnation proceedings, and judgment having gone against the offensive magazine, then it would be delivered into the custody of the Marshal and, under section 24, be destroyed in such manner as the court should di- rect. It cannot be denied that a page of the text of the book would be a component part of the book, and would, therefore, be pro- tected under Section 3, and a page of the text of a book is not an unusually lengthy quotation for a reviewer to make. It is 1 House Bill, Sect. 16. 2 House Bill, Sect. 26. 35 easy, however, to assume a probable case in whicb the question would not depend upon the length of the quotations. Suppose that Mr. Rudyard Kipling should publisli a new volume of poems, (it is now some years since the Seven Seas was given to the public), ajid the London Times, either with or vnthout Mr. Kipling's permission should reprint one of the poems. If the book containing the poem should be copyrighted in this country under the bill, the importation of the copy of the Lon- don Times containing the poem would be prohibited, and the proceedings mentioned above respecting the magazine would be required to be taken. It would be useless to apply to G. P. Putnam's Sons, as the proprietors of the American copyright, for their permission to import either the Fortnightly Eeview or the London Times, be- cause, although Section 26 authorizes them to grant permission for the importation of a book, it does not authorize them to grant permission for the importation of a newspaper or a magazine. Moreover, the same magazine or newspaper might contain, besides Mr. Kipling's, a poem by Mr. Swinburne or a piece by some other English writer which had been printed without the authority of some other American copyright pro- prietor, whoever he might be, and that would be sufficient, un- der the terms of the section, to work the prohibition. Mr. Putnam, the publisher, is continually prating and com- plaining about the insertion of the liberty of importation into the Act of 1891 at the last moment and without consideration. He reproaches Congress with "granting copyright ,with one hand and taking it away with the other." He means that Con- gress grants copyright which is an exclusive monopoly, and per- mits importation from abroad which impairs its exclusiveness. So far as the importation of foreign made copies of the works of American authors is concerned, the criticism is reasonable and would deserve consideration, if such importations were actually made to any material extent, but so far as it is applied to the works of British authors written, printed and published abroad, and that is the way he intends it, it is nonsense. For a few years before 1891, whenever a book likfely to be popular 36 or written by a celebrated foreign author was published abroad, some of the New York publishers eagerly seized upon it and reprinted it in quarto or newspaper form, on wretched paper, in small type, so that it could be sold at ten or fifteen cents. These books, if books they could be called which books were none, were so badly made as to be hardly readable, and were promptly thrown away by the purchasers, but they stopped the reprinting of the book in a decent form, and they prevented the importation on a considerable scale of foreign made copies of the work. Sometimes several publishers would thus reprint in cheap form their respective editions and sell them in com- petition with each other. The publishers sought to stop the cut-throat business. -"^ They raised a great uproar about deny- ing to .foreign authors the privilege of copyright in this coun- try. The press took up the subject and the air resounded with the appeals of authors to do justice to foreign authors in order that foreign countries might do justice to them. Public opinion was influenced by that consideration. Meanwhile the publishers kept their scheme in the shade. The act then existing was amended by striking out American citizenship or residence as a condition of copyright, and the removal of that limitation opened the door as wide to foreign authors as to our own. The trade-unions demanded that copyright should be granted to for- eigners only on condition that the type-setting for the book should be done in this country; this was conceded. The pub- lishers did not much care because the mere fact of copyright would secure to them absolutely the entire monopoly of book production and bookselling in this country, whether the work was native or foreign. This result was at length perceived by 1 See Mr. G. H. Putnam in the Forum for January, 1894, where he said "ITie fifteen-cent 'quarto' of the 'libraries,' hastily and often care- lessly printed, was an oflfence'to the eye and probably not infrequently an injury to the sight. It was not, in the proper sense of the term, a. book, and could Hot be preserved as one. It was usually bought for railroad reading, notwithstanding the unsuitableness of its typography for such a purpose, and was often thrown away at the end of the journey." * * * "It is the case also that the fifteen-cent and twenty-five cent libraries' were not crushed out by the copyright law, but for some time before the passage of the law were rapidly coming to an end as ''''^L "'*? }^* ^}.t °^ P'l'ated material, they could not be published at a P"'""'^- -ine'r cut-throat competition speedily destroyed the verv inconsiderable possibility of profit in the business." 37 Congress and appreciated. An amendment was inserted permit- ting importation by libraries and the like, and by individuals, not more than two copies at a time. This subject was fully dis- cussed in the Senate and the House and the provision as en- acted was a modification devised in the Conference Committee, and the Bill could not have passed without it.^ Congress did not intend, and refused to prohibit the importation of foreign made copies of foreign works for personal use and not for sale. It intended to grant nine-tenths or ninety-nine hundredths, what- ever the fraction might be, of a monopoly of the foreign work in order to prevent the pxiblisher from stealing the whole of it. All the arguments and legislation on international copyright are there in a nut-shell. As the grant of copyright did not discriminate between native and ;foreign works, so the liberty of importation did not discriminate. The engineer was hoist with his own petard; the biter was bit; the publishers were caught in their own trap. If the claim of foreign authors to copyright had been taken up independently, as it should have been, then that claim and the just pretensions of publishers to publish foreign authors' works and the rights of the people respecting them could and might have been provided for suitably without interfering in the slightest manner with the complete monopoly of the copy- right proprietor of American works. But such a mode of manipulation would have turned the light on every detail of the 1 Mr. G. . H. Putnam stated as follows in an article written by him- self and published by his firm, The Question of Copyright, 2d Ed. N. Y. 1896, pp. 58, 59: "The amendment which brought out the largest amount of discus- sion was that offered by Senator Sherman." * * * "This amendment authorized the importation of foreign editions of books by foreign authors securing American copyright" * * ♦ "A modification was, however, finally made in the Conference Com- mittee in the provision of the bill permitting the importation of copies of authorized foreign editions of works copyrighted in the United 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 concession undoubtedly helped to secure the final vote in the Senate, ac- cepting the bill without the Sherman amendment, as it removed the objection that readers preferring Eu/ropean editions ought not to be prevented from seeming these (in duly authorised issues) for their own libraries." 38 subject, and have left no obscurity in which the meditated fraud could hidden lurk. They preferred the other mode of treat- ment; that is, place the foreign author on exactly the same footing as the native, and Congress did. And when Congress, discovering the fraud, said we will let libraries and individuals import in limited numbers foreign copies of foreign books, gen- eral language was and had to be used which let in foreign copies of American books also. ^ The Congress of 1891 knew what it was doing and did rightly. The folly was the folly of the promoters of the bill. The same interests are pursuing the same methods now. "Though you bray a fool in a mortar, yet his foolishness will not depart from him." The Travellers' and Public Librarians' Expecta- tions are Liable to be Disappointed. After the book is imported, either as personal baggage or even under the copyright proprietor's permission, if that should ever be granted, the book could not be sold at any time within the the term of the American copyright. The importer of it may die or become bankrupt, but from a sale of his library, that book must be excepted. Probably the book would have become of great value, because excessive rarity always en- hances the price of a book, but that would make no difference. The proviso at the end of Section 26 provides : "That copies imported as above may not lawfully be used "in any way to violate the rights of the proprietor of the Amer- "ican copyright or annul or limit the copyright protection se- "cured by this Act, and such unlawful use shall be deemed an "infringement of copyright." Section 1 gives to the copyright proprietor the exclusive right to vend. A, sale of the book at any time by the importer or his heirs or assignee in bankruptcy would be an act limiting the copyright protection secured by the first section. Libraries and analogous institutions would also do weU to import with extreme caution. "When they lend a book promis- cuously to readers, they publish that book, that is, they make it public. But Section 1 gives to the copyright proprietor the exclusive right to publish. Would not the lending by libraries 39 of their imported books be a limitation, or an annulment, in so far, of that exclusive right. Provisos in statutes are very ticklish things, and must al- ways be regarded with suspicion and be handled with care. Sometimes they operate as exceptions and they always dominate the preceding words of the statute either by taking out of the enactment what would otherwise be a part of it, or defeating its operation. The Librarian and his "general advisers" will now solemnly disclaim any such purpose. But what is the use of the proviso if it be not that which I have described? They wiU tell us that it was added to the section out of abundant caution. jS^o goose would suppose that the importations authorized by Section 26 could limit or annul the exclusive rights granted by the first section. The caution was excessive. With a jail and a heavy fine confronting the infringer I would advise the custodians of public libraries to refrain from purchasing any edition of the book, and travellers returning from Europe to avoid importing entirely. Stranger and more unexpected turns than what I have sketched above have occurred in the interpre- tation of statutes by the courts. A court would, undoubtedly, endeavor to reconcile the liberty of importation by libraries and in personal baggage with the proviso, and strain rules of interpretation so as to aecomplish what might be regarded as the legislative intent ; another court might be inclined to apply the rules strictly, and to hold that the remedy must be found in an amendment of the law. How- ever that may be, there is enough substance in the criticism to form a basis for a law suit in which the publisher could vex an importing librarian, subjecting him to trouble and expense, while his own expenses would be defrayed by the Publishers' Trust. The foundation for such a suit would be as substantial as those brought against the department stores to restrain the latter from selling books below the prices fixed by the pub- lishers. -"^ 1 See the reports of the cases Bohbs- Merrill vs. Strauss, 147 Fed. Eep. p. 15, and Serihner vs. Strauss, ibid., p. 28. 40 The Penalty for Unauthorized Importation. The bill provides measures intended to make the prohibition actually prohibitive, and to this end a scheme has been devised which in ingenuity rivals the persecutions of Star Chamber. Sections 22, 23, 24 and 25^ of the proposed bill provide that (1) All articles "prohibited importation" shall be seized by the collector or other officer of the customs. (2) The seized copy shall without delay be delivered into the custody of the principal customs officer of the district. (3) The said officer must send notice of the seizure to the addressee of the seized article and require the latter to appear and file his claim to the article within thirty days from the date of the notice. (4) The claimant within twenty days from "such first pub- lication of notice" may file a claim and deposit a bond in the penal sum of $250 with two sureties to be approved by the collector, conditioned that in case of condemnation the oblig- ors shall pay the costs and expenses of the proceedings. N. B. Publication and first publication of the notice is not antecedently mentioned, and what the words italicized may mean in this connection is doubtful. The liouse bill requires a publication in a newspaper once a week for three weeks, which the unfortunate importer will be -equired to pay for under his bond. (5) The collector transmits the bond with a description iif the article seized to the District Attorney who is required to proceed for a condemnation of the property. (6) If a claim is not filed or the bond is not given within the twenty days specified, the article is to be destroyed in a manner to be prescribed by the Secretary of the Treasury. (7) If the article is condemned, it is to be delivered into the custody of the United States Marshall and be by him des- troyed in such manner as the Court may direct. (8) If the article is not condemned, it is to be delivered to the importer upon payment of the duty. 1 The references are to the Senate bill; the corresponding sections of tlie House bill are 23, 24, 25 and 26. 41 (9) If probable cause for the seizure is found by the court, the officer making the seizure is to have a certificate exonerat- ing him from liability ; the bill furnishes no standards or tests by which "probable cause" can be determined. (10) The mails from foreign countries are to be "carefully examined by postrmasters." (11) The post-master must forward to the customs officer every package containing an article supposed to have been im- ported in violation of the Act; whose supposition and what circumstances , will justify a suspicion or supposition are not suggested in the bill. (12) The customs officer must detain the article in his custody. (13) He must notify the addressee of the package of its detention. (14) He must require him to show cause within sixty days why the "supposed prohibited article" shall not be destroyed. (15) If the addressee does not appear, the customs officer makes formal seizure of the article, and if the package con- tains any prohibited article, the same is to be declared forfeited and is to be destroyed in such manner as the Secretary of the Treasury shall direct. (16) If the article proves to be "innocent," the package is to be forwarded to the addressee subject to the payment of the duty. (17) If the addressee does appear and affirmatively shows that the article is not prohibited, it may be delivered to him upon payment of the duty. Newspapers and magazines as well as books are under the universal ban. The foregoing provisions are to be understood in connec- tion with the provision that the American copyright edition of the book is not required to be published at as early a date as the foreign publication. Section 15 provides "That in the case of a book published in a foreign country "before publication in this countiy the deposit in the Copy- bright Office not later than thirty days after its publication "abroad of one complete copy of the foreign edition, with a 42 "request for the reservation of the copyright and a statement "of the name and nationality of the author and of the copy- "right proprietor and of the date of publication of the said •'book, shall secure to the author or proprietor an ad interim "copyright. Except as otherwise provided, the ad interim ''copyright thus secured shall have all the force and effect given "to copyright by this Act, and shall endure as foUov^s: "(a) In the case of a book printed abroad in a foreign lan- "guagcy for a period of tv^o years after the first publication of "the book in the foreign country. "(b). In the case of a book printed abroad in the English "language or in English and one or more foreign languages, 'until the expiration of thirty days after such deposit in the "Copyright Office." The meaning of the foregoing provisions is that the owner of the American copyright has thirty days from the date of the publication in England of the British author's work to file in the Copyright Office of this country his reservation of copy- right, and has a further period from that date of thirty days within which to publish his o^vn edition, if he ultimately elects to publish any, so that sixty days may elapse from the date of the foreign publication until the book is ayailable to an Amer- ican purchaser, and in the meantime the pains and penalties provided by Sections 22 to 25 are in effect. The operation of these provisions in a probable case would be substantially as follows: The American student reads the advertisement of the English publisher announcing prospective books, or observes otherwise such information to the reading public as is custo- marily given, and he writes to his London dealer requesting that a copy be forwarded to him by mail on the day of pub- lication, and he may expect to receive it a few days later. The American publisher may r^ard a book as a mere article of merchandise which is as useful next season or next year as this, but the student and scholar craves the immediate possession and enjoyment of the book if its scope and authorship coromend themselves to his taste or discernment with an eagerness which has always characterized the thirst for knowledge. Under the proposed bill he must wait, with what patience 43 he may, for, perhaps, sixty days. Of what use will it be for such a person to beseech the American copyright proprietor for permission to import promptly the book? But one answer would be returned : Wait until we get out our edition and we shall then be pleased to furnish you with a copy of that at the usual net price. The foregoing punitive sections are defective in that they do not prescribe the manner in which the offending book, news- paper or magazine is to be destroyed, but destroyed they must be in a manner to be directed by the Secretary of the Treasury or by the court. Physicists tell us that the destruction of mat- ter is difficult if not impossible. Sinking them in the sea 'or burying them in the earth would not destroy them, be- cause they might rise again at some unforseen time dur- ing the possible seventy or eighty years of the copyright term, and "foul deeds will rise though all the earth o'erwhelm them to men's eyes." The Secretary of the Treasury or the court might order the Marshall to eat the book, newspaper or magaziaie, or better still sentence the importer to eat it, whose intellect might thereby be replenished^ though in a man- ner not originally contemplated by him; or the Secretary of the Treasury or the court might direct that the book, news- paper, or magazine, should be burned. The burning should, of course, be in a public square so that the people would know what the auto-da-fe is about and the spectacle operate upon others inclined to evil doing as a warning not to buy any more books, newspapers or magazines. To this end it would be well to have the little junta of publishers form a circle about the flames and explain to the bystanders that the bonfire is not, as usual, in celebration of liberty, but denotes the enslavement of the people to the book-sellers' greed. I beg leave to suggest an amendment to the bill, which, instead of directing the des- truction of the book, newspaper or magazine, should direct the Secretary of the Treasury to transmit the offending book, news- paper or magazine to the Chief of Police at St. Petersburg, who, 1 "he hath not eat paper, as it were; he hath not drunk ink: his intellect is aot replenished;" [Love's Ldbowr's Lost). 44 Avith his black, hand, could obliterate the ofFending matter, if ihe article should be a newspaper or a magazine, or guard it by Cossacks if it should be a book, and to transport in Barclay's celebrated and popular ship,^ in which, as it seems to many reflecting persons, more Americans embark every season than sail in the entire fleet of ocean liners, the publishing junta in order that they can see the sentence completely executed, and the Secretary of State might be directed^ also by the Act, to provide by diplomatic arrangements that when they have ar- rived in Eussia they shall be detained there permanently. The Prohibitory Provisions are not Capable of Be- ing Enforced, and must Subsist as a Scarecrow. These provisions, if they had not been adopted by the Com- mittees, would have been too ridiculous for serious criticism. They had been considered by the Librarian, his "general ad- visers," and the "main body;" incubated, as it were,, by all of rhem in turn ; and when with anserine solemnity they marched in, and, with much cackling and clutter, presented this egg to the Committees for hatching, the Committees did not and could not know, as its begetters did not, that the egg was addled be- fore it was laid. The provisions are incapable of enforcement ; the scheme must break down from its own weight. The bill contemplates, that the Secretary of the Treasury and the Postmaster-General will furnish to customs officers and postmasters a list of all copyrighted books, and in order that the prescribed duties of those subordinate officers should be ef- fectively performed, such lists must be full, complete, and promptly furnished. But will those high officials of state be able to make up such lists ? They certainly cannot do it from any information derivable from the records of their Own offices ; the Librarian is the only functionary to whom they can resort.^ 1 Alexander Barclay, an English poet of the sixteenth century, wrote a satirical poem with the title, The Ship of Fooles, in which under the figment of a ship freighted with various kinds of fools, he exposed the follies of his age. 2 The Register of Copyrights is required to index all copyright regis- trations S,nd issue "periodic catalogues" of the titles; the catalogues as issued are to be "promptly distributed" to collectors of customs and 45 But I shall show in a later section^ that the bill has been so bungled or so artfully contrived, that the Librarian will be unable to learn what books are copyrighted, and what are not, or when the copyrights are taken, or when they expire. Assume that the law in this respect, at least, can be executed, an assumption which we are entitled to, and which ought to be made, and that the Librarian can and does obtain the re- quired information, and furnishes it to the Secretary of the Treasury and the Postmaster-General, and that they in turn furnish the lists to their subordinates, the latter will be unable to use them. There were published during the year 1905 in this country 8,112 books, of which 5,719 were by American authors.^ It is safe to predict that, imder the stimulus which the publishers allege will be given to authorship and publication by the enact- ment of the Bill, there will be published during 1908 in this country not less than 8,500 different books in the various de- partments of literary production, every one of which will be copyrighted, because, under the Bill, copyright will cost noth- ing and will involve no condition except printing a notice of copyright on the title or following page.* In five years the Index Librorum Prohihitorum would contain at least 42,500 titles, and in twenty-eight years* the prodigious number of 238,000 titles; and the number would go on swelling and ex- postmasters, (by whom distributed is not mentioned) and other lists are to be prepared by the Secretary of the Treasury and the Postmaster- General (from what source is not mentioned). Sections 49 and 50, which regulate the matter, are too obscure in the phrasing to be quite intelli- gible, but the supposition stated in the text seems to be about the general drift of the scheme, so far as can be reasonably guessed. It can hardly be supposed that Congress will make the subordinate officers accountable to the Librarian as well as to the Heads of the Departments in which they serve, because to do so would introduce confusion in administration. We shall see further on that the Librarian will be obliged to invoke the aid of the Attorney General. The Secretaries of State, War and the Navy ought to feel piqued that their services have not been requisitioned in the publishers' hullabaloo. 1 See post, p. 85. 2 See World Almanac for 1907, p. 314, where classifications and book productions of all countries are given. :i See post, p. 83. 4 The date when the proprietor of the copyright may file a notice that he desires the full term, which consists of the life of the author and thirty years from his death. 46 panding with the accretions of every year and the retention of titles of copyrights which will avail of the full term allowed by the hill enduring for, perhaps, seventy years or more.^ From the dropping of expired copyrights, when they could be ascer- tained, and the frequent addition of new ones the lists would be in a state of constant flux and reflux, as unstable as the surface of the sea in commotion. To the books must be added the magazine articles, and prob- ably also the paintings, prints, musical scores, sound records, and all the other subjects of copyright protection.^ No statis- tics of our annual output in these various departments of ar- tistic production are available to me, but it must be verj large and very varied in character. However extensive it may now be, we are entitled to assume that it will increase in amount and variety, because the object of the bill presumably is to en- courage artistic, production in America. All these articles will be entitled to the same kind and degree of protection as books, — ^to the exercise of the same espionage over importation, to the end that infringements may be excluded or destroyed. Even if the lists are limited to books, plainly no register or even card-index could stand the strain; the postmasters and 1 See post, p. 68; and perpetually through corporations, p. 96. 2 vVhether the importation of any article copyrighted in this country other than books, newspapers and magazines is prohibited may. be a matter of some doubt. The Bill contains no express prohibition of any- thing except books, and articles bearing notice of copyright when there is no existing copyright thereon in this country (Sen. 21. House 22). But the diity of customs officers to seize extends to "any and all articles prohibited importation by this Act." (Sen. 22. House 23.). And the examination by postmasters of foreign mails and forwarding to customs officers for seizure suspicious matter is not limited to books, but extends to "any article imported in supposed violation" of the Act. The latter language, if not the former, might be held to include prints and all other articles in addition to books, newspapers and magazines, the existence of which in this country would be a violation of the American copyright. An argument might be made on each side of the question, for which I have no space. Whether the omission to expressly prohibit the impor- tation of copyrighted articles other than books arose from the bungling of the Librarian, or an appreciation of the absurdity of prohibiting the importation of books and unwillingness to carry the absurdity too far, or from indifference to the interests of producers other than publishers of books, it is also unnecessary to consider; the important matter now is that the customs officers and postmasters are to be fumisTied with "cur- rent uatalongues" of all copyrighted matter without any distinction of its nature ( Sect. 49 and 50 ) . Why should they be furnished with such catalogues unless they are to keep infringements out of the country? " 47 customs officers would collapse uiider the requirement of ex- amining the incoming books, old and new, and the flood of daily, weekly and monthly newspapers and magazines, and collating them with their lists ; they must examine everything that comes in, books and every other copyrightable subject, to see whether it is marked with a notice of American copyright, and, if it is, they must search their lists to see if the notice is false, and, whether it is marked or not, they must search their lists to see if it is an infringement ; their task would be "numbering sands and drinking oceans dry." The transaction of other necessary public business by them would be seriously crippled, if not prevented. Such a law would break down within a year from its enactment, and thenceforward would subsist only as a scare- crow. The "interests" whose condition the Librarian sought to "ameliorate" ask too much. The enforcement of the law with an approximation to effi- ciency will require an organized bureau with an assistant, a chief clerk, a corps of subordinates and deputies stationed at the various ports and gateways of entrance to the country. Such a bureau will, of course, require an appropriation (money which might better be spent in public works). The natural head of it will be the Librarian. Bureaus have sometimes ex- panded into Departments, and the Chief into a Secretary with a seat in the Cabinet. Does the Librarian aspire to that ad- vancement? It is not unlikely. The suggestion seems fan- tastic, but I will ask my readers to suspend judgment until we come to consider the section which authorizes him to super- vise rules.^ From mendicant at the palace gate to grand-vizier in the palace is a progress familiar to us in an Arabian tale, and in this country of sudden vicissitudes from dejection to felicity and back again, similar sports of fortune are not unknovm. The reading public will not be benefited by prohibition, but injured. Readers of books are generally buyers of books. The danger of competition from the importation of a foreign edi- 1 Post, p. 103. 48 tion of a foreign work will keep down or reg'ulate to some ex- tent the price of the American copyrighted edition of the same work. Some years ago was exhibited a painting of the young Lin- coln, in backwoodsman's garb, reading, after a day of toil, by the flame of a pine-knot, not a newspaper but a book, and then forming, as we learn from his history, the ideals of liberty and justice to which his life was consecrated. Throughout this country, in backwoods and factory, on hill and prairie, are thousands of youths and young men saving from their meagre wages to buy books, and from their scanty leisure to read them. Destined to obscurity, to be "mute and inglorious" undoubted- ly most of them are, but destined also to serve the communities in which they shall dwell, by their character and example. They will feel the enhancement of the cost of good books which this biU would make possible and invite. To my mind the extra profits which the publishers hope to obtain by prohibiting the importation of foreign books are not a feather's weight in the scales of justice against the innocent pleasure and useful instruction of such as I have described. Why, gentlemen of the Senate and of the House, will you leave in the bill the slightest source of danger to the humblest members of the State in one of the most important of their interests which you should be eager to protect. Many, per- haps most of you, owe your present eminence and opportunity for the beneficent exercise of power to those capacities which were stirred, warmed, and developed by the possession of covet- ed books, and the respect with which you are regarded to the character formed by the perusal of them. Prohibition will prejudice many and profit only a few. Upon this question the promptings of political expediency coincide with the dictates of justice. Those who will be irri- tated by an embargo upon foreign books for the benefit of a private pocket, and those who, if not themselves buyers of books, will share the indignation or disgust of those who do 49 buy, are many, while those Avho will profit from prohibition are few and unimportant. The publishers who seek to prohibit the importation of for- eign editions of foreign works themselves publish the books of American authors in only a small way. For some reason, perbaps not difficult to conjecture, American authors do not resort to them in large numbers in order to find readers for their works. The stir which they make in behalf of American au- thorship and protection by copyright is altogether out of pro- portion to their importance in the publishing trade. ^ They remind one of Burke's grasshoppers under a fern who make the air ring with their importunate chink, while the sturdy cattle reposing under the shade of the oak, chew the cud and are si- lent. You must not suppose, he said, from their continuous clamor that those who make the noise are the only denizens of the field, or that they are other than the little, meagre, shrivelled, but troublesome interlopers which they really are. The promoters of the bill are much inclined to purchase small editions of English books from the English presses and cause their names to be printed on the title page as the publisher. They justify this practice by saying that they are the Ameri- can publishers, although they take no risks of the enterprise, except the loss of profits on one or two hundred or fewer im- ported copies. In so far as they do this they are jobbers, not publishers. The ability of the private buyer to import the genuine English work keeps dovra their profits, and if they can prevent this, their market and their profits will, they think, be a trifle more secure. They are anxious to obtain mono- 1 Mr. G. H. Putnam boasted that he had "some 950 copyright con- tracts" in his safe. If each has a term of 28 years, it would make an average of about thirty-three copyrights acquired in each of the last 28 years; if each has a term of 42 years, it would make an average of about twetity-two copyrights acquired in each of the last 42 years. His company probably acquire about twenty-flve copyrights per annum. The house of Macmillan Co. in New York has just issued its list of Fall Announce- ments which contains more than 150 items, of which more than half are the works of American authors, about a quarter are the works of foreign authors, and the remainder I am unable to classify. Judging from their advertisements I should estimate that the publishers seeking .to prohibit the importation of foreign books may together copyright and publish possibly about one-sixth of the books published in New York City. 50 polies so as to control prices, and that is about the sum of their interest in the copyright question. Duration of Copyright. The bill, as reported, grants a term of copyright for the re- mainder of the lifetime of the author and for thirty^ years after his death, provided the copyright proprietor within the^ year next preceding the expiration of twenty-eight years from the date of first publication records a notice that he desires the full term allowed by the Act. The term of life and thirty years after applies to all copyrightable subjects excepting pho- tographs and posthumous works,^ the latter being protected for thirty years only. The British act grants a term for the life of the author and seven years after, or forty-two years from publication, whiche^'er may be longer. Under the proposed bill the American publisher's monopoly of the foreign work would continue for twenty-three years after the book had become public property in the country of origin. The existing law grants to the author or his assigns an absolute term of twenty-eight years from the date of record- ing the title, and grants an extended terrii of fourteen years to the author, if he is living, or to his vsddow or children if he is dead.^ If the author leaves no such representative, the work, upon the expiration of the terra of twenty-eight years, becomes puhlici juris. The first Copyright statute (May 31st, 1790) granted copy- right to citizens of the United States and residents therein for the term of fourteen years, and upon its expiration the author, if then living, was entitled to a further term of like duration. The law so remained until 1831, when, by the Act of February 3rd, the original terra was extended to twenty- eight years with an additional term of fourteen years to the author, if living at the expiration of the first term, or to his 1 The bill as proposed by the Librarian and as advocated by his conlerees granted a term for the lifetime of the author and for fifty years after his death. 2 Section 18. 3 U. S. Rev. Stat, sections 4953 and 4954. . SI widow or children if lie should then be dead. Although Con- gress has often legislated upon the, general subject of Copy- rights since 1831, mainly to extend the list of copyrightable subjects, no change has been made in the duration of the original or of the extended term or in the persons entitled to the latter. Congress contemplated that the author might have assigned his copyright to a publisher, possibly for an in- adequate consideration, and, therefore, enacted, out of tender regard, for the author and those closely allied to him who might be dependent upon his labors, that the second term should be granted only to him, if he was alive at the expira- tion of the first, or, if not then alive, to his widow and chil- dren, -the assignee of the first term taking no interest therein^ at least by reason of the ovmership of or an interest in the original term. A policy which has been persistently adhered to by the law- making body for three-quarters of a century, which has seemed to be satisfactory to the people, and which has encountered no criticism from authors themselves except the spasmodic and sometimes hysterical outbursts of a few servile writers, who have been pricked on by the publishers, ought not to be aban- doned except upon grave considerations of public policy, and, in determining public policy, the interests of the people are the first subjects of attention. Those who advocate a change in the law must show cause why the law should be changed. The burden is upon them to satisfy the public intelligence and the discretion of Congress by a preponderance of cogent rea- sons. Let Mr. Putnam the Librarian, or Mr.- Putnam the publisher, point to some generally prevalent abuse which should be corrected, to some injustice, which a considerable number of the people are ■ compelled to endure under the law as it is and has been for so many years. When this is done, then it will be in season to invent and apply remedies and reliefs, accomplishing as much good with as little harm as the nature of the case permits. A mere outcry that our laws are "bar- barous," a term frequently applied to them by copyright re- formers, or that they do not agree with the laws of foreign coun- tries, is simply the vaporing of self-seeking prejudice. 52 The advocates of a long term of copyright monopoly gen- erally base their pretensions upon the natural right of man to enjoy in perpetuity the creation of his own genius. The thing created, they say, belongs to the creator of it; it is his to enjoy as he may choose, or to destroy; he may endow the world with his ideas, or he may withhold them forever and carry them with him into the oblivion of the grave. ■*■ The law concedes, they argue, that unless he publishes his thoughts to the world, his possession of them cannot be dis- turbed, and he may dispose of them when and as he pleases, and the written expression of them will descend to his heir who in turn will enjoy the same absolute sovereignity over them. But, as he is under no compulsion to publish, the mere fact of publication cannot operate to extinguish the natural right which he acquired as creator, because he remains none the less the creator, and as his dominion had its origin in that fact, and as the making the thing known was only the exercise of his sovereign power over the thing, clearly his natural right is unaffected by the publication. No more can a man swallow his o'wii head. And, they continue, by as much as the perpetual term of monopoly is curtailed, by so much is he robbed of his natural right, and if he ac- quiesces reluctantly in a -shorter term than perpetuity, it is only to save himself from being further despoiled by a ruthless, stronger power. Such arguments are not without a certain specious plausi- bility, which has deceived those who uttered them and some who listened to them. They were, however, exploded gen- erations ago, and the fallacy of them has been exposed so often that I would have no excuse for wasting my space or the time of any reader, by exposing it again, but I may quote the words of Mathew Arnold, as sane a critic of life, men and their interests, and as successful a writer of books, o'ut- 1 Mr. Clemens (Mark Twain) speaking of the author's property in a book said, "It should be the property of that man and his. heirs forever and ever, just as a butcher shop would be, or — I don't care — anything, 1 don't care what it is" and "The law should recognize the right of perpetuity in this and every other kind of property." Pro- ceedings before Congressional Committees, Dec. 1907, p. 119. 53 side the region of prose fiction, as modern times has produced. '■•I^ow, for me the matter is simplified by my believing that "men, if they go down into their own minds and deal quite "freely with their own consciousness, will find that they have "not any natural rights at all. And as it so often happens "with a difficult matter of dispute, so it happens here; the "difiimlty, the embarrassment, the need for drawing subtle "distinctions and for devising subtle means of escape from "them, when the right of property is under discussion, arises "from one's having first built up the. idea of natural right "as a wall to run one's head against. An author has no "natural right to a property in his production. 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 acquired, to "have it at his own disposal; that he finds pleasure in so hav- "ing it, and finds profit. The instinct is natural and salutary, "although it may be over-stimulated and indulged to excess. "One of the first objects of men, in combining themselves in "society, has been to afford to the individual, in his pursuit of "this instinct, the sanction and assistance of the laws, so far "as may he consistent with the general advantage of the com- "munity."-*- As the right of authors to a monopoly of their published works is not a natural right, the giving them such a monopoly is a question of expediency, and in fixing the term of the monopoly, the question is to be regarded from the viewpoint of expediency alone. It is for the benefit of the community that the human brain should exert its powers of activity, that ideas should be evolved touching morals, and the social relations, that the mind should be instructed by information about real situations and entertained by the contemplation of imaginaiy ones, and, therefore, that books should be com- posed in order that the community may enjoy, these desirable results. In order that books should be written it is useful that those who have the talents and the inclination should be encouraged to write them. To some the desire of honorable renown will be a sufficient incentive; some will be moved by an irresistible impulse superior to every consideration of 1 Irish Essays, Ed. Lond. 1904, p. 241. 54 personal inconvenience, while others require the stimulus of the pecuniary rewards which they expect will arise from the sale of their works, and often these various motives will mingle. It is within the sphere of government to supply the incentive of a pecuniary reward by giving to the author a monopoly of the sale of his work, and this, in the language of the Con- stitution is "to promote the progress of science." It is desirable that science should be promoted, not for the sake of tbe author, but for the benefit of the community. Science, that is, knowledge is not promoted by payments of money received by an author, it is promoted by the diffusion throughout the community of the author's ideas, of his work, the money payments to .the author being merely an incentive to him, — firstly, to write and next to mdke public and diffuse throughout the community that which he has written. To give to an author an "exclusive right" to his work is to give him the power to control and curtail the diffusion of knowl- edge derivable from his work so long . as the exclusive right endures, and, by so much, to hamper and impede the pro- gress of science or knowledge, either by not circulating his book widely enough or at all, or by placing a price upon it so high, that the people, whose welfare is the primary ob- ject, cannot buy it. Therefore, it being to the interest of the people that knowledge should be promoted, and, to that end, that authors should be encouraged to write, which follows from securing to them an exclusive right in their works, and as knowledge is also promoted by the diffusion through- out the community of the knowledge which their books im- part, and as that diffusion is best secured by making books cheap, it devolves upon the law-making body to determine upon these broad considerations of public-policy, what limited term of exclusive right will best promote the public welfare, and considerations of sentiment should have no influence what- ever. Copyright has been correctly called "a tax on readers for the purpose of giving a bounty to writers."-^ The purpose is laudable, and the tax should be imposed so as beat to ac- 1 T. B. Macauley, see post p. 74. 55 complish that purpose, but when it is accomplislied in reason- able measure, the reader should be relieved of the tax. A long term is not for the advantage of the People. Why should a term enduring for life and thirty years longer, enuring to the benefit of the proprietor, be supposed a greater encouragement to literary prodiiction than an absolute term of twenty-eight years and a renewal for fourteen years more for the benefit of the author? The publisher who buys the man- uscript outright will pay no more for the longer term, if it be longer, than for the shorter one. He will say, as he does say, to the author, and generally with reason, that the profitable life of the book is in the first few years only, and thenceforward it can only encumber the shelves. If the book be a work of science, it is superceded within a generation ; if it be a piece of fiction it has an ephemeral popularity, sells during the season, and is forgotten with the other flowers of the year; if it be a work of literature, serving, at once, to instruct and entertain, it may be slower in blooming and fading, but few such have the honors of a second edition. If the book be one for which a long term of popular interest and demand can reasonably be predicted, the publisher will say, also with much reason, that the term, like Antonio's means, rests "in supposition," that for any longer period than thirty years it depends on the contingency of the author's life, who may die tomorrow; that the term is contingent and speculative, and the practical interests of the publisher's busi- ness forbid his investing in uncertainties of that nature. The publisher, therefore, will give no more for a term co-equfil with the author's life and thirty years longer than he would for an absolute term of thirty years alone. The present worth of a remote advantage is always small: but whatever it may be, when there is subtracted from it the possibility that the remote advantage may be no advantage at all,' the pi-esent worth diminishes to insignificance or to nothing whatever. "No one can predict of any writer now 56 living that his books will be read thirty years hence, or be demanded in any greater quantity than the second-hand book dealer will be able to supply at second-hand prices and without taxing his stock. Public taste changes, and with it the mode of thinking and the style of expression, and if a popular book of to-day is reprinted then, it is safe to affirm that it will be only under those conditions which control the reprinting at this day of books published thirty years ago; they must be cheap. If the author retains an interest in his manuscript by way of royalty, his profit may rise and fall with those of his publisher, and with the passage of time diminish in accel- erating degree. This is, of course, not true of all works of fiction or of general literature, but it is true of almost all. For example, in fiction what early American writers except Fenimore Cooper, Poe and Hawthorne now hold public at- tention; in general literature who except Longfellow, Emer- son, Lowell, Thoreau and Holmes, Irving being little more than a reminiscence. But the merits of those great authors afford no standard for fijcing a period which is adequate for the mass of writers. Por them a hundred years of exclusive right would not be too long, if the period were to be fixed by their deserts alone, and if the law could contrive that the tax paid by their readers would go to their descendants alone, while for the mass of writers five years would be enough,, and more than they need to extract all the emolument which can ever be derived from their productions. But it is those great works of lasting renown and utility which, in the in- terest of the public, should be subjected to the laws of com- petitive printing and publication at the earliest day which is consistent with a reasonable reward to the author, and the day should not be postponed from consideration for the pub- lisher. The novels of Sir Walter Scott, Miss Austen, Cooper, Thackeray, Dickens, have delighted and instructed millions of readers, and they will continue to delight and instruct many millions more. Should it be in the power of any individual, after a reasonable tribute has been paid to the author, to forbid the publication of them except on such terms as the 57 cupidity of the copyright proprietor may be able to extort? Do not the interests and education of the public require rather that every one should be free to print "them and sell them, so that they may be sold at a price within the purchasing poAver of the poorest? The author also owes a debt to the public which it is his duty to recognize and discharge. The author is the writer of his books, but he is not the sole creator of them. He owes requital to the benevolence of a former generation which has given to him the means of informing his mind and cultivating his taste; to the environment in which he finds himself and which excites his ambition to achieve literary distinction; to the public, who, he expects, will become his readers, for unless there are readers, there will not be books. And as a member of the universal human society, it is his duty, ac- cording to his endowments and opportunity, to do, without pecuniary reward, his share in. the amelioration of the social combination which has done so much for him. It has generally happened that authors whose works have attained an enduring distinction began to write early. It was humorously said of Dr. Johnson that he began to write almost as soon as he began to walk. Keats, born in 1795, began to print in 1818 ; Lord Byron, bom in 1Y88, published Hours of Idleness in 1807, and thenceforward his poetical effusions issued from the press in rapid succession; Shelley, bom in 1792, published a romance at the age of eighteen, and another the following year; in 1813, he printed Queen Mob. Robert Louis Stevenson, bom in 1850, published An Inland Voyage in 1878, and in that and the succeeding years, until his death in 1894, continued to enrich English literature with instructive essays and diverting stories which are the boast of the language. The authors just named died young, but pre- cocity of genius is consistent with a prolonged life and con- tinued fertility. Charles Lamb, bom in 1775, began to print in 1792 and continued to produce either verso or prose during a period of forty years until his death in 1834 in his sixtieth year; Lord Lytton (Edward Bulwer), bom in 1805, began to pub- 58 lish in 1826 and then followed in rapid succession poems, dramatic pieces and novels nearly to his death in 1872. James Eussell Lowell, bom in 1819, adopted literature as a profes- sion at the age of twenty-one, began to publish in 1835, and died in his seventy-second year; Longfellow, born in 1807, published Outre-Mer in 1829, having printed, two years earlier, some fugitive pieces of verse, and died in his seventy- sixth year; Emerson, born in 3803, published at least as early as 1835 and died in his eighty-sixth year; Hawthorne, born in 1804, published his first story Fanshawe in 1826, and died in his sixty-first year; Oliver Wendell Holmes, bom in 1809, published a collected edition of his poems in 1836, began the Autocrat in 1857, and died in his eighty-fifth year. The list might be greatly prolonged. ■"• Under the operation of the proposed law, the copyright proprietor of Lowell's works would be entitled to the ex- clusive privilege of reprinting his complete works for a period of eighty-six years; of Longfellow's for a period of eighty- three years; of Emerson's for a period of eighty-four years; of Hawthorne's for a period of sixty-eight years ; of Dr. Holmes' for a period of eighty-eight years. In the works of the authors jiist named, poetry, philosophy, romance, satire, description of travel, criticism, the ethics of life and manners have attained as high achievement as the litferature of this country and this age can boast. The matter of their writ- ings is not only "compact of thought" but is expressed in a form perfectly suited to the purpose of the conipositions. They have the subtlest and most delicate of all arts, style — the pinion on which a great writer's composition wings its flight to immortality. For their works, if for the works of any writer of the last generation, lasting utility as educating and humanizing influences may be predicted. Under the propoi'aed bill, these long term's are likely to be the rule, not the ex- ception. 1 A list illustrating the longevity of intellectual mea may be found in Wm, Matthew's Literary Style, N. Y., 1881, p. 226, and Dr. Beard on Longevity of Brain Workers there cited, • 59 A Contingent Term is unjust to the Author. A term for life and a stated term after death operates un- justly upon the author. It gives the longer term to the crude performances of his youth, and the shorter term to the produc- tions of his maturity when his experience, judgment, taste and knowledge have reached their highest fruition. If the work is published just before the author's death, the pro- posed bill limits the term to an absolute period of thirty years — twelve years shorter than the possible term under the existing law. Without considering the exceptions it cannot be denied that the works produced during middle life and after are generally more useful, more worthy of preservation and of reward than juvenile performances. For example, com- pare Shakespeare's Love's Labour's Lost with the late tragedies or with the Tempest among the plays; Milton's Gomus, with the Paradise Lost-, Thackeray's early pieces printed in Punch. with Henry Esmond; Dicken's Piclcwich Papers with Bleak House; Keat's earliest pieces with the "magnificent fragment" Hyperion. Illustrations could be extended indefinitely. Mil- ton's Camus was published in 1634, the Paradise Lost in 1668, and Milton died in 1674. Under the operation of such a law as is proposed by this bill, a Comus would be protected for seventy years and a Paradise Lost for only thirty-six years, the greater poem for half the period of the inferior one. Kobert Louis Stevenson left Weir of Hermiston unfinished. Competent critics assert that if completed it would have been his masterpiece. Suppose Stevenson had just completed the story before his lamented departure, it would have received protection for only thirty years, while An Inland Voyage would have enjoyed forty-six years. It is to the later books and not to the earlier ones that an au- thor looks mainly for the pecuniary rewards which are ex- pected to flow from- an exclusive right. Macaulay, the historian, speaking in the House of Com- mons on a bill brought in to extend the copyright term to twenty-five years reckoned from the death of the author, likened it to a kind of inverted lottery "so contrived that, in the vast 60 majority of cases, the blanks Mall fall to the best books, and the prizes to books of inferior merit."^ Abolition of the second term granted under ex- isting law. The proposed bill abolishes the second term of fourteen years given by the existing law to the author, his widow or children. The attention of the Committees was not suiEciently directed to this change in the law.^ Neither Senator Kittredge nor Chairman Currier refet to the matter in their reports, or men- tion it as an alteration in the policy of the statute which has subsisted for three-quarters of a century. One of the covert but great objects of the bill is to enable the publishers to . escape from this second term. Why ? Let us concede that ninety per cent of the published books do not live beyond the first term of twenty-eight years ; the Com- mittees so reported and they were probably right. No one can certainly aifirm upon a perusal of a manuscript, that the book will fall into the select long lived class.^ Not even the author will assert it, and the vanity of authors is tradi- tional. The publisher and the author will, therefore, bargain on the assumption that the book will be in the ninety per cent class. But it turns out to possess more enduring merits than were supposed, and at the end of twenty-eight years 1 Speech on Lord Mahon's bill, April 6tli, 1842. Speeches, Lond. 1854, p. 251. Maeaulay also said in the same speech in illustration, p. 249, ih. "it would evidently be absurd to put tickets into a wheel, with different numbers marked upon them, and to make writers draw, one a term of twenty-eight years, another a term of fifty, another a term of ninety." 2 The Librarian in his summary of the bill as proposed by him called attention to and mentioned this important change in the law simply in these two words "Abolishes renewals." June 1906 proceed- ings before Cong. Com. p: 8, last line. 3 Landor wrote, citing authority "In the correspondence of Swift and Pope, The Arabian Ifights are mentioned with contempt. Gray speaks in like manner of Rousseau's Heloise. These "works are perhaps read with more universal delight than any others, ancient or modem. * * * It is amusing to look into reviews of literature, where a series can be found, and to see the remarks made at the moment, on Hume, and Robertson, and Goldsmith. They are treated as somewhat less than equals by the lowest order of literary men, * * *" Charles James Fox by W. S. Landor, Lond. 1907, p.' 143. 61 there is a large demand for it. If the bargain can then be redressed by a new one, the advantage would accrue to the author under existing law, but to the publisher under the proposed law. The second term of fourteen years to the author or to his widow or children is always a distinct and important advant- age to him, and never a disadvantage, because if the au- thor has made an improvident bargain with his publisher for the first term, its disadvantages may be redressed by the bargain for the second term with a surer knowledge of the selling value of the work. The proposed law altogether omits this salutary provision, and under it the publisher will ac- quire, and the author will forever part with, the entire in- terest in the work not only for the contingent term during life but also for the absolute term of thirty years from his death, unless the author reserves to himself the ownership of the copyright, which rarely happens. Section 9 provides that "the author or proprietor of any "work — or assigns, shall have copyright for such work, etc.'' The term for life and thirty years after is a continuous term. Section IS-*- provides that the proprietor of the copyright, that is, the puhlisher, if he has bought the work at any time either outright or on a royalty, shall, in the twenty-eighth year from the first publication, record a "notice that he desires the full term provided herein," viz., the absolute term of thirty years from the author's death, and neither the author, nor his widow, nor his children can have any interest therein, however im- provident the bargain may have been, and however the suc- cess of the work may have transcended the author's expecta- tions, and however needy the author or his widow or children may then be, or afterwards become. Observe also that the proprietor, that is, perhaps or prob- ably, at any rate possibly, the publisher, is not required to record his demand for the full term, that is, the absolute term of thirty years, when the author dies, but in the twenty-eighth year from first publication, whether the author be then living 1 Subd. (c) i'roviso. 62 or, dead.^ The operation of the proposed law would in some cases he like, and in all cases would approximate the follow- ing example. An author in the year 1908 completes a work and sells it to a publisher who immediately publishes it, the author being then iifty years of age. The author dies, say ten years later in 1918, then leaving a widow and children. The publisher as proprietor of the copyright in the year 1936, eighteen years after the author's death, but in the twenty- eighth year from the first publication records Ms notice that he desires the full term allowed by the act, and the prolonga- tion of the original term enduring to 1948 enures to the benefit of the publisher only. The case is not altered if the author sells his work for a reserved royalty instead of a sum outright. As improvident a bargain can be made under the one plan as under the other — improvident in respect of the rate of royalty reserved, or the publisher, because of stupidity, perversity, lack of capital, interest in other publications, excessive caution or other trade reasons, may have impeded the sale of the work. This unjust result is worked by substituting the contingent life term and optional prolongation thereafter of the proposed law for the ttvo absolute terms of the existing law. It must be conceded, in justice to the framers of the bill, that a contingent life term would be next to worthless to the pub- lisher as a purchaser of the copyright, unless he should be made perfectly secure in the ownership of the work for the ensuing absolute term, because no publisher would incur the expense of purchasing a copyright and of setting the type and printing for publication, if his interest might cease the next day or in six months or at the uncertain date of the author's death. His investment would depend ut)on the good 1 The requirement of a notice in the 28th year from the first pub- lication was an amendment made by the Committees in reporting the bill. The bill as framed by the Librarian and his conferees conferred a term for life and fifty years as a single and continuous term, without any requirement of notice as a condition of the second term, and made no provision that any part of the continuous term should be for the benefit of the author or his family. The bill as reported, leaves the term a continuous one, notwithstanding the notice which works a prolong- ation only for the benefit of the proprietor. 63 will of the author's widow or children. Therefore a life term and an absolute term beyond is urged by the publisher, because the abolition of the existing renewal term to the author seems to be a necessary corollary to it. It is no answer to the argument to say that the author may reserve the proprietorship of his work, and that therefore his heirs can control the disposition of the absolute term. Of course he can, but the au^or may have been improvident, or st-^m necessity may have induced the author's original bar- gain with the publisher, or the work may have contained elements of usefulness and popularity which were not at first perceived, or a subsequent work of the same author may have brought the earlier one of equal merit more conspicu- ously into public view. Authors are many and publishers are comparatively few, and the author must accept the publish- er's terms unless his own renown enables him to dictate the bargain, or his own means enable him to print and sell at his own risk, and in these cases there are so. many tricks of the trade that the author may easily be disappointed in his expectations. John Ruskin was, in fact, his own publisher; Walter Besaut, the popular English writer, novelist and his- torian, organized a society for the protection of authors from the overreaching of publishers, and I understand that Hr. Clemens is interested in the publishing profits of his own works. No experience under the existing law makes this change in the policy of the law either desirable or reasonable. The change is in the interest of the publisher and against the interest of the author. There is a semblance of benefit to the author by granting a term for life and for thirty years after, but the absolute term goes to the proprietor and not to the author or his family, and in this respect the proposed law cheats the author. The distinction between the existing law and the proposed law was plainly made by Mr. -Frank H. Scott, the president of the American Publishers' Association and the president of the Century Company, which, besides publishing the Cen- tury Magazine, is a general book publishing concern. The bill as framed by Mr. Putnam, the Librarian, granted a period 64 of monapoly for copyrights subsisting at the time the Act should take effect for a term equal to that which might be enjoyed by new copyrights taken under the Act, but mark how the Librarian sacrificed the interests of the author to the interests of the publisher, for his bill provided that "should ■ such subsisting copyright have been assigned, or a ■'license granted therein for publication upon payment of roy- "alty, the copyright shall he reneived and extended only in "case the assignee or licensee" (the publisher) "shall join in "the application for such renewal or extension."^ That put it in the power of the publisher to say to the author: You give the renewal tome on my terms or I refuse to join in the application and you lose your copyright. This is called in the phrase of the day "a hold up." Mr. Scott made the argument to the Committees in support of the Li- brarian's "hold up" as follows: "Under the bill as it is proposed now, if the author secures a "continuation or a renewal of his copyright, and the publisher "is not consulted the publisher would be left with his set of "plates and his investment in the sheets and stock ; and it would "be absolutely impossible for him to sell them to anybody, be- "cause his contract having expired, and the author may have "gone and made a new contract with a new publisher leaving "him entirely out of it. If there is no copyright whatever he "can compete on equal terms."^ One would suppose that the author had not paid for the publisher's worn out and battered plates over and over again, and that authors existed for the publishers (and some publish- ers seem to think so). But the Librarian's bill, in respect of copyrights subsisting at the time the act should take effect, required the author to make the application for renewal, and this would put it in the power of the author to say to his publisher: If you do not give me something decent for the renewal I will not make the application. Then if they did not agree (mark the cunning device), by the author accept- ing whatever the publisher might offer, the copyright would lapse, the author would lose everything, and the publisher 1 Librarians bill, sect. 19. 2 Proceedings before Cong. Committees, June 1906, p. 54. 65 with his plates already paid for would be in a position to conunand the market at the mere cost of paper and printing. The bill as amended and reported by the Committees marred the Librarian's and the publishers' scheme by omitting the requirement, respecting copyrights subsisting when the act should take effect, that the publisher's consent should be nec- essary to a renewal, but preserved it respecting new copyrights taken out under the act, giving the entire term, viz., for life and thirty years beyond, to the proprietor, usually the pub- lisher. Mr. Scott had said, "There will be no trouble about "the copyrights taken out after the passage of this bill. It "is only with reference to copyrights that are now in exist- "ence.^ The Librarian and Mr. Scott might well be. content. The biggest and best half of the scheme succeeded. I cannot learn that during the orgies of "selfish interests" presided over by Mr. Putnam, the Librarian, one word of protest was uttered against the cunning plan to deprive the author of his just rewards in respect of subsisting copyrights. At the Committees' hearings the only voice heard to expose it was that of a publisher^ from Chicago, who had not been invited to the Librarian's feast.* The Author's Copyright League officered by Mr. R. R. Bowker, the editor of the Publishers' Weekly and by Mr. R. U. Johnson, who described himself as "a member of the Century Company"* of which Mr. Scott was the president, were silent upon this point. Whether, a^ friends of the publishers, the latter being himself a member of a publishing concern, they perceived the snare and ignored it, or as authors, they did not detect it, nothing which was said by either of them enables an attentive reader to determine. If it should be thought desirable to grant a term which shall endure for the life of the author, the law should be left as it now is, and a third term of renewal, for, say ■ fourteen years, should be granted to the author if living, or, if he 1 Froeeedinga before Cong. Committees; June 1906, p. 54. 2 Mr. G. W. Ogilvie, Ihid. pp. 44 and 49. 3 Jlid. p. 44. 4 .Proceedings before Cong. Committees, Dec.' 1906, p. 38. 66 is dead, to his widow or descendants. The successive terms aggregating fifty-six years would, with very few exceptions, outlast the life of the author, and give defeat of Vallandigham who was a candidate for governor of Ohio, and he was grieved because it was not printed until six weeks after the election. But as soon as published it was universally read and produced an extraordinary effect in rousing the patriotic emotions of the ISTorth at a period in the great struggle when the outlook was gloomy indeed.'* If, as the chairman stated, with- out doubt upon adequate authority, more copies of The Man Without a Country were sold during the last year, which was in fact, the first year after the copyright expired "than had evei- been sold in any one year before," the fact would seem to show the value to the people of relieving a book from the copyright tax at the earliest reasonable date. The hour may be nearer at hand than we now think when the oppression of the laws, the despair of redress from the l^slature or the courts, may move some as they prepare to leave their native land, to exclaim in bitterness of soul, as Philip iN^olan did, I wish I may never hear of the United States again. Then, if they chance to read the pathetic story of !N^olan's repentance, they may reflect that justice is not quite dead, that when the storm clouds of passion shall have dis- 1 Proceedings, Dec. 1906, p. 117. 2 Report, p. 13. The story was first printed in the Atlantic Monthly ior Dec. 1863. I cannot understand how the copyright could have expired until Dec. 1905. 3 Dr. Hale states that within a year iafter the publication in the Atlantic Monthly more than half a million copies iof the story had bden printed in America and in England. The Man £c. Boston, 1898, p. 16.' 76 charged their bolts, the silver lining and the rainbow of hope may again appear. Under the proposed law, the copyright, if it had not already expired, would not expire until the lapse of thirty years from Dr. Hale's death, and it would be quite within the range of possibility that it would come to be owned by some person who might be interested in suppressing it, in order to prevent the effects of its circulation.-'- For an illustration of the power of a book to move an entire nation I need refer only to Helper's Impending Crisis. (1857) Punishment of Infringers. The proposed bill provides the following punishments to he inflicted upon infringers.^ (1) He is to be enjoined. (2) He is to pay the damages suffered by the copyright pro- prietor, and in addition, (3) he must pay the profits which he may have made from the infringement; 1 This Is not a falnciful argument. Macaulay made use of the same argument in his speech of Feb. 5th, 1841, cited ante p. 74 He said, "1 will give another instance. One of the most itistruotive, interesting, and delightful books in our language is Bos-well's Life of Johnson. Now it is well known that Boswell's eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps alto- gether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irri- table that at last he could not bear to hear the Life of Johnson men- tioned. Suppose that the law had been what my honorable and learned friend wishes to make it. Suppose that the copyright of Boswell's Life of Johnson had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the^ consequencedl? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden's Brittania. "These are strong cases. I have shown you that, if the law had been what you are now going to make it, the finest prose work of fiction in the language, the finest biographical work in the language, would very probably have been suppressed. But I have stated my case weakly. The books which I have mentioned are singularly in- ofl'ensive books, books not touching on any of those questions which drive even wise men beyond the bounds of wisdoTp. These are books of a very different kind, books which are the rallying points of great political and religious parties. What is likely to happen if the copy- right of one of these books should by descent or transfer come into the, possession of some hostile - zealot ?" et oet. 2 Sect. 19 Senate Bill; sect. 20 -House Bill; sect 23 of Librarian's pro- posed bill. ; , • ■ . 77 (4) in lieu of damages and profits the court may assess such sum as seems to be just, or the court may assess damages at the rate of ten dollars for every infringing copy of a painting, statue or sculpture; fifty dollars for every infringing de- livery of a lecture, sermon, or address; one hundred dollars for the first and fifty dollars for every subsequent infringing performance of a dramatic or musical composition ; one dollar for every infringing copy of all other works made, sold or in possession of the infringer, his agent or employees; but the damages must not exceed five thousand dollars ; (if the court as- sesses "such sum as seems to be just," the limit of $5,000 does not appear to apply.) (5) Goods vsfhich the plaintiff claims to infringe must be impounded during the pendency of the action ; that is, sentence the culprit first and try him afterwards. (6) All infringing copies, as well as plates, molds, matrices or other means for making the infringing copies are to be destroyed. This might include the presses. (7) The infringing act is declared to be a misdemeanor and he who commits the crime or aids or abets the infringement shall, under the Senate Bill, be imprisoned for not exceeding one year or fined not less than one hundred nor more than one thousand dollars, or he may be both imprisoned and fined.'^ Under the House Bill he is to be fined only, but he is to "stand committed to jail until said fine and costs are paid.^" The Senate Bill adopts the Librarian's vindictive proposal. The House Bill is more merciful by saving the Infringer from jail if he can pay the fine and costs. But what the costs are or may be is not defined. *• 1 Section 21. 2 Section 22. 3 The Librarian's bill also provided that the infringer must pay a reasonable counsel fee to the plaintiffs counsel. (Section ■ 25 of Librarian's draft.) The Librarian, and his "general advisers" did not perceive that such a one sided and unfair provision as that would make the act unconstitutional under the ruling of the Supreme Court in Gulf, Colorado & Santa Fe R'y vs'. Ellis, 165 U. S. 150, but the Congressional Committees saw it and substituted for it a provision that the prevailing party, whether plaintiff or defendant, might be awarded a reasonable attorney's fee as part of the costs. (Senate Bill, sect. 32. House Bill, s-ect. 32). As the Committees cured the defect by cutting. 78 These punishments are cumulative. The poor wretch who has infringed some publisher's copyright, after paying all the damages the publisher has sustained, and surrendering all the profit he has himself gained by the criminal act, if indeed he has been able to discharge these burdens, and after seeing his offending edition and his guilty types and plates and, possibly, presses utterly destroyed, must still as the sunmum malum be sent to jail for a year and be fined, perhaps a thousand dol- lars. "What spirits that tend on mortal thoughts" filled the Librarian "* * from the crown to the toe top-full Of direst cruelty," and inspired this Draconian bill. What is there in the nature of copyright which should make a trespass upon it deserving of such condign punishment? Al- though an infringer upon a patent for an invention is liable to the patentee for the damages and the profits, the patentee can talfe only that which is the greater. The infringer may be enjoined from further infringement, but the tools by which the infringement is produced are not destroyed, and he is neither fined nor imprisoned. Why should not a trespass upon land or upon any other private right be punished with equal severity, and the jaws of the jail gape for the trespasser? If a patent for a machine is infringed, the patentee has only a civil remedy. It may be conceded that in designing the ma- chine the inventcJr was moved only by the hope of profit from the sale of it or of its products, and that, therefore, a trespasser upon his rights should answer for the trespass by a money pay- ment only; but Mr. Sousa, the bandmaster, declared that he can "compose better" for a thousand dollars than he can for six hundred.-^ iNTothing more mercenary than that has ever been uttered by any one who was asking for consideration as an artist. The publishers and the publishers' men heard it it out, the proposal is mentioned to show the bias of the Librarian and his "main body" and the incompetence of his "general advisers." The latter will probably say they can distinguish the Librarian's provision from the case cited. Of course they can. Every lawyer can always distinsruish ; it is part of their art. 1 Ibid. p. 31. 79 without comment or reproof. "Why should the leader of a cir- cus bandwagon he liable to be sent to jail for a year, and fined a thousand dollars for playing one of Sousa's compositions with- out authority from him ? It would be interesting to inquire how much of sunshine Mr. Sousa himself would enjoy and how much of his fortune he would retain, if 'he were brought to book by all of those musicians whose harmonies, notes and combinations he may have appropriated in his own compositions. The sugges- tion is no disparagement to him, because every musician, artist, scholar, professor of science, is more or less of a borrower, and they owe to art, literature and science a debt, which must, in the course of common justice, be repaid. Many cases arise and must continue to arise where the act charged against the defendant was committed wilfully, but is of debatable or perhaps doubtful character. For example, quo- tation from a copyrighted book is lawful, but there is a limit to quotation, beyond which it is infringement. A critical re- view may quote at. length and praise or condemn the matter quoted.^ The dividing line between legitimate quotation and infringement is incapable of precise definition because it is determined by the discretion of a judge or the verdict of a jury. Under the proposed law the critic or reviewer must determine rightly, if under its terms he may quote at all, just how much he may quote, restrained by apprehensions of a jail and a heavy pecuniary mulct. And, perhaps in view of section 3, the critic or reviewer is not at liberty to quote at all, because the copy- right secures the "component parts" as well as the whole. In the case of a painting any variation of it will be an in- fringement of the exclusive right. If the bill becomes a law, no student of art may vary or rearrange the components of a copyrighted painting without incurring the possibility of fine 1 Sectitfn 1 of the Librarian's bill provided that the copyright should secure the exclusive right "to make any copy of any work or part there- of," (sub-section a) and "to sell, distribute, exhibit &c. or offer or keep for sale, distribution, exhibition &c." (sub-section 6) ; and m re- spect of works of art "to produce any variation, adaptation, or arrange- ment" (sub-section h). .,.,,_. i, ^ ., -^r.^ Both the Senate and House Bills provide (Sect. 3) that the copyright "shall protect all the copyrightable: component parts of the work copyrighted.^' A paragraph is certainly a component part. • , 80 and imprisonment. These exclusive rights may endure as I have shown above-"^ for nearly a century. Illustrations of the cranaping effects of such an illiberal, nar- row and supremely selfish policy might be multiplied indefinite- ly. That policy will not tend to the advancement of art, litera- ture or science. It will necessarily convert those who have in- tellectvial creative gifts into mere peddlers of wares, degrading their ambitions, vulgarizing their genius, and it will check the advance of public virtue, morals and taste. The musician who can compose a better harmony for a thousand dollars than he can for six himdred, the artist who can conceive and paint a better picture, the man of letters who can write a better book, the man of science who can solve a more difficult problem, for the greater price than he can for the lesser, has no place in the temple of art, of literature, of science, or of fame; he may not approach and lay his itching palms upon the altar whose fire bums not for him. Better that he should slink out of the race, where immortal garlands are to be run for, not without dust and heat, than that he should, enter with ears deaf to the- world's applause, and with greedy eyes seeing only the money value of the prize. There is neither necessity, nor occasion, for such harsh remedies as are proposed by the bill. The remedial provisions of the existing law have been proved by long experience to be entirely adequate to protect the copyright proprietor in all his rights. Copyrights have been, on the whole, and are generally respected. This is provable by the fact that the judicial decision in copyright cases have been so few in number since 1791 that they may be contained between the covers of a single thin volume, while the decisions in cases arising on patents for inventions rendered during the same period would make almost a library, and the number of copy- rights taken outnumber the patents issued for the same period many times.^ Laws with teeth in them have not been required. 1 See ante p. 68. 2 For example volumes 142 to 151, both inclusive, of the Federal Reporter comprise the decisions of the Federal courts during the year from May 1906 to May. 1907. They contain reports of 23 adjudications 81 If any change in existing law is to be made, it should be in the direction of greater liberality by abolishing the action for pen- alties payable one-half to the proprietor and one-half to the United States, and substituting for it the simple recovery of damages and profits with authority in the court to double or treble the verdict as may be appropriate in the particular case. The Committees have conceded the propriety of abolishing the government's interest in the penalties recovered by not retain- ing it in their proposed bill. The policy of our laws has been to require each party to an action to bear his own expenses, the costs which are re- coverable by the successful against the defeated litigant being practically nominal in variety and amount. The rich man and the poor man are by that plan placed, as nearly as practicable, upon an equality in maintaining their contro^ versies. While the Librarian's bill was obnoxious to the crit- icism that it gave power to the court to award to the counsel for the copyright proprietor^ a "reasonable counsel fee," under which an unsuccessful defendant might be made to sufFer heavily, the Committee's bill gives power to award a "rea- sonable attorney's fee" to the prevailing party, who may be the alleged infringer, and is, therefore, in that respect, im- partial, which the Librarian's bill was not. The power is liable to abuse; the discretion of a judge does not always move on rational lines. If the bill should be pressed for enactment, the possible award should be limited so as not to exceed a percentage (say five per cent) of the amount recovered by the plaintiff if he succeeds, and five per cent of the amount demanded by the plaintiff, if the, defendant succeeds. Method of Securing Copyright. The deeper we delve into the provisions of the bill, the more interesting our discoveries become ; and those which relate to the securing of copyright throw a flood of light upon the in- in litigations under copyrights, and of 262 adjudications under patents for inventions. The patent cases were eleven times more numerous than the- copyright cases, and a large proportion of the Jatter were under trade copyrights as distinguished from copyrights on literary works, and in none of thew was the trespass wanton. In each there was a fair ques- tion. 82 competence of its framers. The result of the operation of these prov^isions will be (1) to deprive the Library of Congress of the two copies of all copyrighted books which hitherto it has received, and, thus, to relieve the copyright taker from the petty tax involved in depositing with the Librarian for the use of the Library the two copies, and (2) to secure practically un- limited copyright, although the bill seems to grsiiit a term only for life and thirty years after. Whether these results arise from the cunning craft of the framers or merely from their bungling, I leave to the election of the publishers and to the judgment of my readers ; in either case they were incompetent to frame a statute for the benefit of the people. A good argu- ment can be made for either proposition, and either can be refuted by the other. The scheme seems to have been so ela- borately contrived as to preclude bungling, and the objects of the scheme seem to be so petty and unfair as to preclude con- trivance. In explaining the scheme I shall ask my readers to make no other assumption than that the publishers will act for their own pecuniary interest and within the letter of the law, — surely not a violent assumption to make. The Committees substantially adopted the provisions of the bill presented by the Librarian,-"- but, of course, without appreciating their result in operation. Under the existing law, in order to secure copyright for a book, the copyright taker (the author or his assignee) must de- liver at the Librarian's Office or deposit in the mail addressed to him, on or before the day of publication, a printed copy of the title of the book, and, not later than the day of publication, two copies of the book.^ The Librarian is required to record in a register the title, and the name of the author or proprietor in the few words prescribed by the statute.^ The proprietor must also deposit one copy of every subsequent edition wherein any substantial changes shall be made.* It is necessary to 1 See Sects. 9 to 15 Librarian's draft; Sects. 9 to 15 Senate Bill; Sects. 10 to 16 House Bill. 2 U. S. Rev. Stat. Sec. 4956. 3 Ihid. Sec. 4957. 4 Ihid. Sect. 4959. 8-3 give notice to the public of the copyright, because the copyright proprietor cannot maintain an action for infringement unless he has given a notice, in the few and simple Vi^ords prescribed by the statute, on the title page of the book or the page imme- diately following, ■■■ and, therefore, the omission of the notice has practically the effect of invalidating the copyright. Com- pliance with this condition is as easy as printing the title- page itself. Substantially these requirements to secure copy- right have been the law since 1790. I^o fault has ever reason- ably been found with them. The Librarian is entitled to re- ceive a fee of fifty cents for recording the title, and no other fee is required unless a certified copy of the Librarian's record is desired, which he is bound to furnish for fifty cents, unless the book is that of a foreigner or non-resident for which one dollar is charged. The fees received must be paid into the treasury of the United States-.^ The cost of two copies of the book and of one copy of a subsequent edition in which sub- stantial changes may be made, is not a large tax to be paid by the copyright proprietor in considej-ation of the monopoly ob- tained, even if, in some cases, it may amount to two or three dollars. Those copies go upon the shelves of the Library of Congress where they become a part of the Library and may be preserved, at least as long as they are worth shelf room. The proposed bill requires, in order to secure copyright of a book, merely that the person entitled to the copyright shall publish the hook with the notice of copyright printed on the title page or on the next page.* That is all. The person en- titled to the copyright may be either the author or the pro- prietor of the work.* No registration of the title or of the author's or proprietor's name is required in the Copyright Of- fice or elsewhere, and no deposit of any copy of the book is required as a condition of securing the monopoly. But section 11^ provides that "after copyright has been se- 1 U. S. Rev. Stat. Sec. 4962. 2 U. S. Rev. Stat. Sect. 4958. 3 Senate Bill Sects. 9 and 14; House Bill Sects. 10 and. 15. 4 Senate Bill Sect. 8; House Bill, Sect. 9. 5 Senate Bill; House Bill, Sect. 12. 84 cured" by publication of the book with the notice as above "there shall be promptly deposited" two copies "of the best edition thereof then published." That seems to require de- posit of the copies, but it is not effectual; it is not made the duty of any one to deposit them. If the copies are not de- posited the Eegister of Copyrights may at any time after pub- lication "upon specific written demand require the copyright proprietor to deposit them." What the term specific may mean in this connection is somewhat uncertain. By whom and upon whom is "the specific written demand" to be made? By the Eegister upon the proprietor, or by an interested stranger upon either or upon- both ?-'^ But assuming that the "specific written demand" is to be made by the Register and upon the copyright proprietor, and is to specify the book required to be deposited, what will happen in case of non-compliance with the demand? Whj, under the Senate Bill, if the proprietor does not deposit them within one month "from any part of the United States," or within three months "from any foreign coun- try," he "shall be liable to a fine of one hundred dollars." The copyright is not affected at all by the omission to de- posit after "specific written demand." Under the House Bill (sect. 12) the proprietor forfeits the copyright in case of "de- fault" to deposit after "specific written demand." The Senate Bill follows the recommendations of the Librarian, who was very careful to omit any requirement which would jeopardize the publisher's interest or make the provisions for the benefit of the people effectual. Of the two provisions that of the House Bill is much the better, but as we shall see, the difference between the two bills is immaterial, because neither penalty nor forfeiture can be made effective. It is also provided that no action or proceeding shall be maintained for infringement "until the provisions of this sec- tion with respect to the deposit of copies and registration of such work shall have been complied with."^ 1 If the intention was that the "specific written demand" is to be made by the Register, the word 63/ should have been used instead of upon. What is a spemflo demand in distinction from a general one? 2 Sen. Bill, Sect. 11. House Bill, Beet. 12 omits the word "regis- tration." 85 Under existing law, registration and deposit of copies is an essential condition of the initial validity of the copyright and tnust be made on or before publication. Under the proposed biU those acts or the absence of them do not affect the validity of the copyright, but only the right to sue. As registration under the provisions of the section is the only registration men- tioned as a condition of the right to sue, and as the section proyides for no registration, that condition may be disregarded. The deposit (registration also if any is required) may be made at any time after publication, and need be made only the day before commencing an action, and if no action should ever be commenced, deposit need not be made at all. Why should the publisher give gratis to the Register, or to the Library of Congress two copies of the book, which may have cost him two or three dollars, when he can derive no advantage from the gift and if he does not give them, the Librarian, if he wants than for the Congressional Library, will be obliged to buy them at the usual net price. If the copyright proprietor is ever obliged to commence an action for infringement, then he may, perhaps, give them, but he will wait until then. The contingency of that event occurring is remote. Probably not one copyright in ten thousand ever becomes the subject of litigation, and of copy- rights of books the proportion is much smaller. But the Register may require by "specific written demand" the copies to be deposited, and then, if the proprietor does not deposit them, he will be liable to a fine under the Senate Bill, and to a forfeiture of the copyright but no fine, under the House Bill. It will be conceded that the Register has no right to make any demand except for a copyrighted book, and, in his demand, he must specify that book, or the demand vdll not be specific. How will the Register learn that he may or should make a demand ? How will he learn that a copyright has been taken ? Wo notice whatever to the Register of Copyright is required to be given as a condition of copyright. He will not learn from advertisements in newspapers or magazines, because these never distinguish books which are copyrighted from those which are not. He might learn from the books themselves, but, in 86 that case, he must buy all new books which issue from the press iu every city in the Union, at least as far as the appropria- tion will suffice, and then these must be examined and the Ilegister must turn over the copyrighted books to the Bureau of Correspondence, which he will need and for which an appro- priation must be made, with instructions to make specific de- mands for copies. He will not probably demand copies of all copyrighted books of which he acquires knowledge, but he may, and which shall be the objects of his demands rests in his caprice. He will at least demand copies of some. But, as it is necessary to catch your hare before cooking it, the Register must ascertain the abode of the copyright pro- prietor before demanding copies. If the copyright proprietor should appear to be also the publisher, this would not be diffi- cult, but, if the proprietor should be some other person than the publisher, it would be very difficult and in most cases im- possible. The publishers who contrived the scheme to save the cost of depositing two copies of the book, or to save giving in- formation of the copyright, would, of course, take copyrights in the name of some dummy, following the example of corpora- tions with dummy directors, and there is nothing in the bill to forbid it. The dummy would naturally be an obscure clerk, or, better still, a confidential title-holder possessing a name and nothing else. The Register would, therefore, be obliged to search the street directories of all cities, make inquiry in the rural districts, and then make similar pursuit throughout all the countries of Europe. Of course, the good offices of the Secretary of State would necessarily be invoked, and that great department of government would rapidly become, I imagine, a mere tender of the Copyright Office. The Register's quest would probably in most cases fail and no demand for the two copies of the book would or could be made. A "specific writ- ten demand" has a very distinct meaning when a fine or a for- feiture follows disobedience. The demand must specifically describe the thing demanded, it must be in writing, and must be served personally upon the demandee. But assuming that the demand is made, nothing happens, under the Senate Bill, in case of non-compliance with the de- 87 maud. True the pioprietor of the copyright becomes liable to a fine of one hundred dollars. This provision of the bill is so indefinitely drawn that it is doubtful if by any ingenuity it could be enforced. But assuming that it could be enforced, who ia to enforce it ? No authority is given to any one to com- mence an action for the recovery of the hundred dollars. The Register is a statutory officer and he cannot do it without the authority of a statute. If he sues, will he sue in his own name or in that of the United States ? If in the latter, what court wiU have jurisdiction and who will represent him in court? In that case the Attorney General or a district attor- ney must appear, but no authority is given to either of those officers to prosecute the action either in the name of the Regis- ter or of the United States, and I imagine they would refuse. But suppose they consented, and again, supposing the impossi- , ble, suppose they recover, to whom will the money belong? To the Register, to the Attorney General, or to the district at- torney? Certainly not to the treasury of the United States because not a syllable of the bill gives the treasury an interest in one cent of the recovery. As stated above Section 11^ provides that "no action or pro- ceeding shall be maintained for infringement" until the pro- visions respecting deposit of copies and registration are com- plied with. Bear in mind that not one copyright in ten thou- sand is ever infringed. If, peradventure, a copyright should be infringed and the proprietor should care to sue the in- fringer for the recovery of damages and profits accruing to himself, then he may deposit the two copies in the Register's Office the day before his action is commenced, and tluat may be in the second or the fiftieth year of the copyright term. But suppose the proprietor of the copyright does not wish to com- mence a civil action and relies on the criminal remedies pro- vided under Section 21.^ Under this section the infringer, and he who aids or abets the infringement, is to be "deemed guilty of a misdemeanor" and upon conviction must be pun- 1 Senate Bill; House Bill, Section 12. 2 Senate Bill; House Bill, Sect. 22. 88 ished by imprisonment or by fine or by both. Infringement would, therefore, be a crime, and it would become the duty of the district attorney to take his information before the grand jury and cause an indictment to be found and to prosecute the indictment. This may be, under section 29, in any district "of "which the defendant or his agent is an inhabitant, or in which "either of them may be found." It would manifestly be the duty of the district attorney to prosecute the criminal and pun- ish him for his criminal act, no matter what the character of the informer may be or what his delinquencies may have been, and the failure of the copyright proprietor to deposit two cop- ies, even after the Register's demand, or his failure to pay the fine of one hundred dollars, if judgment for it had been obtained, would be no bar to the criminal prosecution. A prosecution for a crime is not "an action or proceeding for m- fringement" which alone is barred by the failure to deposit after demand. Or, will it be argued that the infringement is not a crime, or, being a crime, the criminal cannot be prosecuted until the two copies are deposited ? Upon that view the act constituting the crime is always the same, but the act becomes a crime, or is punishable as a crime, only on condition that some third per- son does something, which will make the other's act a crime. Surely no proposition in criminal law more extraordinary was ever encountered. A writes a book; B copyrights it as pro- prietor in 1908; C publishes it; D, being a pirate,^ reprints the whole or a component part of it in 1909. Copies of the book had not been deposited, but are deposited in 1910 ; D's act done in 1909 was not a crime until B's act done in 1910, but then becomes a crime, or, being a crime when done in 1909, proceedings against D cannot be taken until 1910. The House Bill provides (Sect. 12) that "after the demand shall have been made, in default of the deposit" the proprietor shall forfeit the copyright. This, I have said above, is wiser in theory than the imposition of a fine, as in the Senate Bill, but 1 The vernacular of the bill. Senate Bill, sect. 26; House Bill, sect. 27. 89 it is open to the objection that conditions of the forfeiture are H prior "specific written demand," and a following failure to deposit. If the demand cannot be made upon the dummy pro- prietor or the non-resident proprietor, no default, and, conse- quently, no forfeiture can occur. But, assume that the demand is made and that default to deposit) within the periods mentioned, occur, how is the for- feiture to be determined ? The Register will have no right to determine that a forfeiture has occurred, or to make any entry in his records to that effect. I imagine that the adjudication of a judicial tribunal and a judgment of forfeiture would be necessary. Such a judgment could be made only in an action by the proprietor for the infringement of the copyright, in which the alleged infringer, would plead the demand, the de- fault, and the forfeiture, as a reason why the action should not be maintained. Having pleaded those facts, he would be -re- quired to prove them, and by strict proof, because the law does not favor forfeitures. I imagine that a defendant would have some, difficulty in proving after the lapse of fifty, twenty, ten. or even two years, the facts which would authorize a judgment of forfeiture. Certainly no record in the Register's Office of the demand for copies would be competent as evidence, because, for one sufficient reason, the law does not require him to keep a record, -"^ and if this deficiency in the bill should be supplied, it would aid the defendant in proving only the form of the de- mand issued, but not at all in establishing the service of the notice upon the proprietor, which might have occurred in Eur- ope, an outlying territory, or anywhere else on the globe. Sure- ly the affidavit of the server of the demand would not be legal- ized as proof of the service, because that woxdd be unf.air to the proprietoi;; or, if the affidavit should be made competent by statute to prove the service, surely the statute would go no fur- 1 Section 47 requires the Register to "provide and keep such record "books in tJie Copyright Office as are required to carry out the piovi-. "sions of this Act, and whenever deposit has been made' in the Copy- "right Office of a title or copy of any work under the provisions of this "Act he shall make entry thereof." The section has no meaning of any importance. A record of a demand for copies would not carry out any provision of the act. 90 ther than to make it presumptive prodf, because the copyright proprietor is entitled, in all fairness, to his day in court on the question of forfeiture of a valuable copyrighc. Unless the Register should deputize a special messenger to make the ser- vice, some Alaskan Indian or Patagonian savage might make the service, and a valuable property ought not to be dependent on the word of such persons without opportunity for cross-exam- ination. Now, if the proprietor should deny the service, the defendant would be in a very awkward predicament, because, unless, to substantiate the affidavit, he could bring the server from Europe, the "outlying territory" or the grave' where he might have gone, if the question should arise after the lapse of some years, the infringer would be liable to be sent to jail for a year and to incur the other pains and penalties which I have described above. Of course, no reasonable person would encounter these risks, a litigation in which a judgment of forfeiture might be made would not occur, and the menace of forfeiture would be a mere hrutum fuhnen. The Librarian and his conferees, perhaps, foresaw this situation and his "general advisers," perhaps, planned to shape it so. The People, whose interest it is that the Library of Congress shall receive copies of copyrighted books for use and preservation, and, in default of receiving them, that copyrights shall terminate, would be cheated. l^either the Senate, nor the House Bill, seems to be Work- able in the respect just discussed. In the case of a book written by a foreigner and published in a foreign country, the bill seems to be more explicit, but, in reality, is not so. Section 15^ provides for a book "pub- lished in a foreign country before publication in this country," which would embrace the works of foreign authors, and re- quires that within thirty days after "publication abroad" one copy of the foreign edition and a statement of the name and nationality of the author and of the copyright proprietor shall be deposited, and thereby an ad interim copyright is secured 1 Senate Bill. House Bill, sect. 16. 91 whioli will endure for thirty days from such deposit. -"^ By Section 16^, whenever^ within the period of ad interim pro- tection, the provisions relating to domestic books on the sub- ject of deposit et cet. are complied with, the ad interim copy- right is thereby extended for the full term otherwise provided. The ad interim protection of sixty days is intended as a period for experimentation with the book in the foreign mar- ket, but is entirely unnecessary in the case of many books, for example, books by popular or well known authors. Such books could, and naturally would, be published in this country simultaneously with the publication abroad, as they common- ly have been, and, in that case, the provisions for ad interim protection would have no application, and the preceding pro- visions applicable to native books, would govern the case. By the scheme sketched above the Library of Congress could, and imdoubtedly would, be deprived of the copies of books printed in this country which hitherto it has received from the takers of copyrights. The government can, of course, afford to buy its books in the market, but this bill contemplates a continuance of the ancient policy, and the government ought not to be cheated in its expectations. Practically Perpetual Copyright is Secured. The more serious results of the operation of the provisions just examined remain to be considered. They, in effect, se- cure practically perpetual copyright. I have already shown that the copyright may endure for long terms of fifty, sixty, or seventy years and upwards. The people have a right to be informed of the time when the mono- poly will expire and to learn this with certainty as soon as it can be ascertained, in view of the severe punishment to be inflicted upon infringers. I have shovm that there is no neces- sity whatever that the copyright proprietor should at any time cause any entry to be made in the Copyright Office. But the copyright is to run for thirty years from the death of the p. 1 Two years from date of foreign publication if the book is in a foreign language. 2 Senate Bill; House Bill, sect. 17. 92 author. The notice to be printed on the title page of the book or on the next page does not require the author's name to be stated, but requires only the word "Copyright" or "Copr." and possibly the name of the copyright proprietor, although in the case of a book that may be unnecessary/ it being a matter of the grammatical construction of the section, and one for judi- cial interpretation. Usually the name of the author appears on the title-page of a book, and sometimes an assumed name ap- pears — ^this is quite common.^ Very valuable books frequent- ly appear without any name at all on the title-page or else- where ; this is especially true of so called publishers' books, such as compilations. Section lY* provides that the copyright in a work published anonymously or under an assumed name shall subsist for the same period as if the work had been produced bearing the author's true name. In the case of a book pub- lished anonymously or under an assumed name, how will the public thirty, fifty or seventy years hence ascertain when the author died and when the expiration of thirty years from his death will occur, because the probability will be that they will never know the name of the author. I have before me a little book reprinted by Q-. P. Putnam & Sons in 1871, entitled The Fall of England'^. The Battle of Dorking: The Remvniscences of a Volunteer. It was pub- lished in England just after the close of the Franco-Pnisslan war and produced a prodiguous sensation there and in this country, stirred the Eritish heart to its depths, and led to im- portant reforms in the British military system. Opposite the title page is printed a short extract from the London Spectator of May 13, 1872 attributing the authorship to Col. Hamley. The attribution was a mistake. If such a book should • be written here to excite, as that book did, the patriotic emotions 1 Senate Bill. sect. 14; House Bill, sect. 15. 2 The Breadwinners, a novel of great reput.ition sketching American life and intermingling the refinements of polite society with the machi- nations of trades-unionism was published anonymously and still remains anonymous. The late Mrs. Craddock invariably published under the name of "John Oliver Hobbs." "Michael Field" and "Vernon Lee" are pseudonyms of living authors whose works possess great" merit. Mr. S. E. Clemens publishes under the name of "Mark Twain;" 8 Senate Bill; House Bill, sect. 18. -■ 93 of an entire people, it might happen that after an interval of thirty, fifty or seventy years, at a period of national apathy or wrong-headedness, some one would wish to republish the book in spite of the unwillingness of the copyright proprietor to do so. How would he ascertain whether or not the thirty year's term from the author's death had expired ? The Breadwinners, a novel of contemporary American life, interweaving the passions of two orders of society, genteel cul- tivated life and trade-unionism, was published anonymously. Its authorship has been attributed to the late John Hay, but he never admitted it, and it remains a secret. Democracy, an- other novel in the same class depicting the finesse of political life in Washingt.on has been attributed to Mr. Brooks Adams, a master of the pen, but he has made no sign of assent. In each case aspirants for the honor of authorship have been num- erous. Both books can be read now, and are likely to be read a generation hence, with interest and profit. It would be im- possible after the lapse of thirty years to prove the authorship of either book without, at least, the cx)operation of present possessors of the secret, who might be disposed to withhold their aid. Edward Arber's An English Garner^ contains many pieces of exquisite beauty in prose and verse of the Elizabethan and Jacobean age, the authorship of which was unknown to contemporaries and will never be disclosed. Half Hours with the Best American Authors^ also contains many extracts and selections from the works of American authors who were anonymoTis when they wrote and are so still. The authorship of Shakespeare's Plays has been in question for many years. Every muniment room and record in England has been carefully searched for some scrap of evidence which might demonstrate his title and put it beyond dispute. Judge Charles Allen^ has written a book* in which, with masterly analysis and combination, he sums up all the evidence extant and carrier conviction over every doubt, but he adduces no cir- 1 8 vols. Lond. 1895-1896. 2 4 vols, flarge paper) Vhil. 1887. 3 Of the Supreme Judicial Court of Massachusetts. 4 l^otes on the Bacon Shakespeare Questi6n. Boston, 1-800. 94 ctunstance which -would be admissible in a modem court, ex- cept possibly the , reputation which the poet had with his con- temporaries. The authorship of the Letters of Junius is still a secret after more than a century and a quarter of diligent effort to discover the identity of that bold and brilliant writer; Although conjecture seems to be now confident, ^nevertheless Junius is still a shade not to be grasped and held fast. But suppose that the author is known and his name is pub- lished on the title page, after the lapse of thirty years it would be at least a difiicult matter to prove the date of the author's death, especially if he was a foreigner. Is it not plain that these changes in the existing law, provided by the proposed bill, when coupled with the proposed changes in the duration of the copyright, are merely devices to secure a practically per- petual monopoly, and are in no sense in the interest of author- ship or of the people. Another of the objects of the bill is to secure the manufacture here of books copyrighted here, and Section 13^ seems to re- quire that the type shall be set, and the printing . and binding shall be done within the United States, and, with much inapt and inept particularity, an affidavit is required .setting forth the place and time of making the book. The details of the manufacture and the affidavit for proving the same are set out with such meticulous precision, that,* in the reading, one thinks here is something important, something certain ; but the requirements are of no importance at all, and a coach and six cau be, driven plunging through them with the, reins, in .the hands of a, tipsy whip. The requirement of type setting, printing and binding, and- an affidavit is only in respect -of books which are deposited under section 11.^ If no book is deposited, no affidavit need be made, and books .which are offered for sale need not be made in this, country at all. They may be made in Canada, England, anywhere. Por example, an English author or pub- lisher sells the American rights to a IS^ew York publisher who 1 Senate Bill; House Bill, sect. 14. 2 Senate Bill. House Bill, sect. 12. 95 takes title in the name of a dummy, and, at a convenient time before the day of publication in England, the English pub- lisher sells to the New York publisher an edition of five hun- dred to five thousand copies printed and folded in England but lacking a title page and not bound. E'o customs officer could know that they are to be copyrighted, and, if he did, he could not refuse them entry on that account or on any other. The New York publisher merely adds his own title page with the notice of copyright duly printed on that or the next page and publishes the book in this country on the same day that it is published in England, by agreement with the English pub- lisher of course, so as to avoid all occasion for ad interim copyright. The 'New York publisher will have done every act necessary to be done to entitle him to a valid copyright. No copies of the book need be deposited until the Register makes "specific written demand" for them, and no affidavit need be filed until the copies are deposited. The Register may never hear of the book; he may never learn that it has been copy- righted ; he must find the abode and then find (in propria per- sona for service) the dummy copyright proprietor. Finally, the publisher snaps his fingers in the face of the Register and exclaims "Sue me for the one hundred dollars fine and collect it if you can. I have saved and made many times one hun- dred dollars by the printing abroad and the importation." Why should not the business take exactly that course? The New York publisher would be within the letter of the law; he risks nothing; his copyright is imaffected; he need fear no infringement; no rival can set the type and print and bind and market in competition with him ; no one would be apt to learn that the book had been made in England; no one will ever see, within perhaps half a century, any copy of the Eng- lish book for comparison, unless one happens to be imported in personal baggage; no rival wishing to infringe would dare to, ignorant, as he might be, of the locality of the type-setting and printing (matters easily concealed) and. knowing, as he would, that the criminal machinery of the statute could be set in motion against him, and that the copyright proprietor could easily qualify himself to commence a civil action whenever 96 he might elect ;^ and he would appreciate that the cream of the market had been lapped up by the first comer. It behooves labor to see to it that, in seeking the right to print and bind, the right under existing law to set the type is not lost; that in leaping for the shadow reflected in the stream the substance now in the jaws does not drop. Perpetual Copyright may be secured through the agency of Corporations. At the end of section .56 (Sen. ; House, 55), placed entirely out of relation with the context, and with the sections which it affects and which affect it, is the following important pro- vision : "and the word 'author' shall include an employer in the case of works made for hire." An employer may be a corporation. The life of a corpora- tion is, in most of the States, not less than fifty years. In 'New TorP and New Jersey^ it may be perpetual. In those States where the term is less than perpetuity, it may become perpetual by successive extensions. As copyright is to be granted under section lY (Sen. ; House, 18) for life and thirty years after, if a corporation is organized to become the em- ployer of the author and proprietor of the copyright, which can be easily done for a few dollars and with only a nominal capital, a term of eighty years at least, and as much longer as the monopoly may be worth it, is secured for the employer- author's work. The same result may be accomplished by an existing corporation, which may become the employer-author. Mr. G. H. Putnam said in his speech to the Committees as follows : "There is the further consideration that for a large pro- 1 If the book should prove to be very popular, the copyright pro- prietor could make an abridgment of it, no matter how meagre and set the type for it and print it no matter how cheaply; this would be copyrightable independently of the main work under section 6, and no one could reprint the main work in its entirety, withoitf infringing the copyright on the abridgment, as to which the proprietor of the main work would, in all respects, be perfectly regular. 2 General Corp. Lcno, Laws 1890, ch. 563, sect. 11, subd. 1. 3 Dill on Corporations, 4th Ed. if. Y. 1902, p. 23. 97 portion of the literary property produced in this country — publications which make for the higher education of the coun- try — ^the originator is the publisher himself. They are the works that the publisher has suggested ; sometimes single books, such as historical works; sometimes composite works, such as encyclopedias, and always magazines.^ The publisher is him- self the originator of such works, and whatever copyright you gentlemen decide upon under the present bill jou will give to publishers as producers of literary property."^ We have his word for it that the publishers, as employers, produce a large proportion of the books, histories, encyclopedias et cetera which make for the higher education of the coun- try, that is, the best books. Is it for the interest of the people that copyright shall be granted on such books for eighty years at least, with easy facilities under state laws for prolonging the term indefinitely and in perpetuity, at the option of the copyright proprietor?' Did the Committees intend that ? Will Congress sanction it ? I cannot think so. It may be said that at the end of eighty years the privilege of reprinting a cyclopedia would not be worth much. That is true, but the privilege of selecting from it, of using some of its material, of adding to it, might be worth a great deal. In that way, by development upon old foundations, cyclopedias, dictionaries, gazetteers are built up, and the same is true of histories and many valuable works of science. Reading the above extract from Mr. Putnam's speech seems to carry us back to the days of the Stationers' Company and the Star Chamber, when the booksellers, as they were then named, kept writers in their pay, and distilled fortunes out of the writers' sweat. The writer who racks his brain and drives his pen at so much the line, as the publisher's employee, will receive not one cent more for his labor, if the publishing employer's term is eighty years or a hundred years instead of forty. It is to the interest of authorship that the shorter per- iod shall be the limit of the term, because, at its expiration, 1 My readers will recall that to the magazines — the employer-pub- lishers ^the Librarian left the safeguarding of the peoples' interests under his proposed bill. See ante p. 9. 2 Proceedings, Dec. 1906, p. 189. 3 The otmstitutional aspects of the question need not be discussed. 98 some other and later publisher will employ other and later writers to build upon the foundations of the first, while, 'with out this freedom of use, the earlier publisher might be unwill- ing or unable to improve the work, and by the later publisher's lawful enterprise, the people would also gain. There is no public utilities commission to direct a publisher what improve- ments he must make for the benefit of the public. Why should the unspeakable muddle described above, or crafty scheme, whichever it is, be substituted for the plain, simple, direct and effectual provisions of the existing law? If the existing law operates harshly in respect of invalidating a copyright because of omission of the notice, through the care- lessness of the publisher, there can be no objection to consider- ing that criticism and amending the existing law in that par- ticular, or in any other as to which amendment may be deemed desirable. There is no need of thirty-six pages of confused provisions to accomplish that end. The reasons for the proposed change are summed up by Mr. Chairman Currier in his Eeport.^ They are "The failure of "a shipping clerk to see that the copies go seasonably for- "ward to Washington may destroy a copyright of great value, "and very many copyrights have been lost because by some "accident or mistake this requirement was not complied with." No copyrights could have been lost for the reason stated. Existing law does not require the copyright taker to see that the copies "go seasonably forward to Washington." All that the law requires is^ that the copyright taker shall deposit in the mail anywhere within the United States addressed to the Librarian of Congress a printed copy of the title and two copies of the book. He is not required even to pay the postage. His duty is completely performed by the deposit in the mail duly addressed, although he may, if he sees fit, deliver the title and copies at the Librarian's Ofiice. If the title and copies never reach the Librarian's Office, his rights are not lost. The de- posit in the mail is as effective for every purpose as if the de- 1 Report No. 7083, p. 7. 2 Rev. Stat., sect). 4956. 99 livery should be personal and under military escort. The loss of many copyrights because of omission to deposit in the mail is not a fact susceptible of proof or of categorical denial, but 1 very respectfully beg leave to doubt whether the fact has been as stated by the distinguished Kepresentative on the authority, of course, of some publisher. "Seasonably." The deposit of title and copies may be on different days or on the same day, but they must be on or be- fore the day of publication. Under any law, if the copies are required at all, they must be deposited on or before some cer- tain day. Every publisher, every printer, knows the require- ments of the existing law. If his apprentice does not, a letter to the Librarian, or to the Copyright Office, or to any function- ary in Washington will bring him a copy of the statute which instructs in simple, precise language which cannot mislead. It is no hardship to require the deposit to be made on or before the day of publication. The latitude of time is ample. Un- der the proposed House Bill copies must be deposited within one month or three months after the Register's demand, ac- cordingly as the deposit is made from within or without the country) and in case of default, the copyright is forfeited. It is just as easy for the copyright proprietor to deposit in season under the existing law as it Avill be under the proposed law. The holder of a promissory note must present it for payment on a day certain at a particular place, and, in case of non-pay- ment, make protest in order to hold the indorser. There is more capital invested in negotiable indorsed promissory notes than in copyrights many times over. The holders of notes are as likely to be ignorant, careless, or stupid, as publishers and their shipping clerks. If more latitude in time is required for depositing, enlarge it, but not so as to thwart and defeat the purpose of the deposit, and make the validity of the copyright depend upon its performance. There is no need of enlarging the time ; enlarging would conduce to carelessness. The publishers will probably say that there was no intention on their part to provide for themselves means of evading the law • that there was "no such stuff" in their thoughts. It may be so but we wiU do well to remember the old saying that the 100 opportunity makes the thief, and to imitate the prudence of the housewife who places the cream-jug out of reach of the cat. I have already said that the Committees were deceived. I repeat it. There is no substance in the reasons alleged by the Librarian and the publishers for the change and adopted by the Committees ; they are too flimsy to be heeded. The obvious and instant answer is : admonish the shipping clerk to be more careful, or impose the duty upon the mailing clerk. Exoneration of an infringer who is misled by omis- sion to give notice is deceptive. The bill also provides that if the publisher omits to print the notice on some copy or copies by "accident or mistake" he shall not be prejudiced, and he must be excused from depositing the title and copies of the book, because the shipping clerk is prone to forget to do it. Really, nothing should be required of such a careless person, and the bill in its scheme requires nothing from him; the Librarian has been very careful about that. The Bill (sect. 15) does, indeed, exempt an infringer who has been misled by the accidental or mistaken omission of the notice from liability for damages, and that seems to be fair, but we need not search far to find the trick. Fairness also re- quires that the infringer should be reimbursed for his outlays innocently incurred because of the copyright proprietor's neg ligence, and the bill seems to intend that, but the bill also fur nishes a way for defe^-ting it. It provides: "and in a suit for infringement no permanent injunction sha,ll "be had unless the copyright proprietor shall reimburse to the "innocent infringer his reasonable outlay innocently incurred "if the court, in its discretion, shall so direct." That is, the innocent infringer's reimbursement is dependent upon the discretion of the court, covers only his reasonable out- lay with nothing for his own services, and can be obtained only in the proprietor's suit for infringement against him, and can- 1 H. Sect. 15, Sen. 14. 101 not be obtained at all, if the proprietor does not ask for a per- manent injunction. Suppose an innocent infringer innocently sets half the type of a book, or all the type of one volume of a two volume work, and then learns that the work is copyrighted. He cannot go on, because thenceforward he would not be an innocent in- fringer, and for anything thereafter done he would be entitled to no reimbursement, and he might harden the discretion of the court against him in respect of what had hitherto been done, and there would be, besides, the fear of imprisonment and a fine. He must therefore stop. At this incomplete stage of his type-setting labors the copyright proprietor would have no interest in the matter, the incomplete plates could not possibly affect him, he would not need a permanent injunction from the court, he has sustained no damage, and he would decline to incur the expense of suing for infringement; but, except in such a suit, the innocent infringer cannot be reimbursed at all. There is no way out of the dilemma for him, and the innocent infringer must submit to the wrong and loss incurred through the copyright proprietor's accident or mistake. If the Librarian's "general advisers" had sincerely wished to protect the innocent infringer under the circumstances of sec- tion 15, they would have given him an absolute right to sue and recover from the publisher damages at the hands of a jury: Copyright at common law. I had written and was intending to print, as an appendix to this pamphlet, a short sketch of the origin of copyright, tracing it to its sources and fountain head in the censorship of the press and the monopoly of printing regulated by the decrees and practices of Star Chamber, with the purpose of showing the irrelevance of the question of copyright at common-law. I was led to write on the subject for the reason that some of the advocates of the Librarian's bill before the Committees argued that a statutory limited term of copyright should be regarded with hostility, because, but for a statute, the right of an owner of a manuscript to multiply and publish copies would have been perpetual, and Mr. Chairman Currier seemed inclined to 102 adopt that view ; at least, I infer as much from his remarks on the ancient case of Millar vs. Taylor. I have abandoned my intention of printing, because my discussion of the important features of the Librarian's bill has already taxed the patience of my readers possibly beyond the limits of their endurance, and it has far exceeded the limits of the excursion which I ori- ginally proposed to myself, and also because copyright at com- mon-law has now no practical interest whatever. The question of copyright at conunon-law is absolutely dead. If there may be differing degrees of defunction, it is as dead as Julius Caesar, or as any herring, and is as rank. The opinions of the judges in Millar vs. Taylor and Donaldson vs. Beckett have not so much living interest as has the funeral oration over the slain in the Peloponnesian war, which Thucydides puts into the mouth of Pericles. Many persons talk about these opin- ions, but I have never met any who was willing to affirm that he had read them. The publishers who are pressing the Li- brarian's bill will do well not to rake over and excite with their breath the embers of that old contest, lest they themselves be shown in the light of the flames and be consumed by their heat. The framers of the Constitution understood the question thoroughly; they were perfectly familiar with the arguments in the publishers' collusive case of Tonson vs. Collins which was never decided, because of the collusion,^ and with the case of Millar vs. Taylor in which the King's Bench held, by a major- ity of the judges, that copyright belonged to the author at com- mon-law, and that the right had not been taken away by the statute of Anne f and with the case of Donaldson vs. Beckett j in which the House of Lords overruled Millar vs. Taylor and held that the common-law right, if there ever had been one, did not survive the statute, although a majority of the judges expressed the opinion, on a moot question, that there had been such a right; and with the debates in Parliament on the bill which had been brought in for the publishers' relief, in the 1 The publishers who were the copyright proprietors paid the ex- penses of both sides. 2 Millar died before the decision, and Taylor did not appeal, probably as was thought at the time, for a consideration. 103 course of which, in the Commons, the Attorney General, Thur- low, charged the promoters of the bill with having raised a fund of more than three thousand pounds in order to prosecute and ruin any one who should compete with them, and Charles James Fox passionately declared that he could not "let so in- famous, so pernicious, so flagrant a bill pass through any stage without opposing it,"-^ and in the oxjurse of which, in the House of Lords, the Lord Chancellor said "that the book- "sellers never could imagine that they had a common-law "right. That it was asserted in the bill, that it was a prevailing "opinion that a common law right did exist ; that if they meant "that such an opinion prevailed among others than booksellers, "he would venture to say there were fifty to one against it;" and with the defeat and utter rout of the promoters of the bill. To the framers of the Constitution, those opinions and dis- cussions were as recent and familiar as the discussions and decisions of the Supreme Court in the Legal Tender cases, the Income Tax' case, and the Transportation cases, are to us. They knew that the race of grasping publishers would never become extinct, and that every generation would breed a colony to plague Congress and the people with their extortionate de- mands; and they lodged in the law-making body the power to grant copyrights for a limited term only, and, thereby, they showed what they thought of copyright at comiiaon-law. The Librarian's Rules and Regulations. Towards the end of the bill, encountered when the attention is wearied by the examination of the preceding twenty-eight pages, is the following section (House Bill, sect. 46). "That subject to the approval of the Librarian of Congress, "the Register of Copyrights shall be authorized to make rules "and regulations for the registration of claims to copyright." The Senate Bill (sect. 46) adds the proviso "That no breach "of such rules or regulations shall affect the validity of the "copyright." The House Bill adopts the section as proposed by the Librarian with immaterial changes in the phrasing. 1 Parliamentary Hist, of Eng. Lond. 1813, Vol. 17, p. 1110. 104 The section is substantially the same as that which confers upon the Commissioner of Patents, with respect to patents for inventions, his discretionary powers. Section 482, Rev. Stat, provides: "The Commissioner of Patents, subject to the approval of "the Secretary of 1±ie Interior, may from time to time establish "regulations, not inconsistent with law, for the conduct of pro- "ceedings in the Patent Office." Under that authority the Commissioner exercises extensive and important qiMsi judicial and administrative functions. A code of technical rules for practice in the Office has been evolv- ed, two hundred and thirteen in number, and his opinions expounding them are comprised in a library of portly volumes, so that an army of skilled and specialized practitioners has been found to be necessary to interpret between the inventor and the Patent Office. The section of the proposed bill and that drafted by the Librarian, in substance, merely substitutes the title of the Register of Copyrights for that of the Commis- sioner of Patents, and the title of the Librarian of Congress for that of the Secretary of the Interior. Under the proposed section the Register may exercise, with respect to copyrights, the same functions that the Commissioner does with respect to patents, and the Librarian may exercise respecting the Register the same functions that the Secretary of the Interior does respecting the Commissioner. Why ? Under the existing law the Librarian and the Regis- ter exercise only ministerial functions. The statute prescribes exactly their duties, and they miist perform them. The things to be done by the copyright taker are few and simple ; the stat- ute also prescribes those. The author or proprietor deposits with or mails to the Librarian before publication the title, and not later than publication two copies, if it be a book or the like, or if a painting or the like, a description and a photograph.^ The duty of the Librarian is to record in a book the title or description with names and dates, the exact form of the entry being also prescribed by the statute, and a copy of the entry is the copyright taker's certificate of title. 'No rules or regula- 1 R. S. sect. 4956 and 4957. 105 tions are needed for the performance of any act coilnected with registration. The courts take care of the validity of the copy- right if its validity is ever questioned, and this is proper. Before the Librarian was entrusted with these duties, they were performed by the clerks of the District Courts. I have found no indication of any dissatisfaction expressed by anybody with the performance of these duties by either kind of official, at least none that rules and regulations would have avoided. The Librarian is employed to purchase, to classify, to care for, the books acquired by the Library and to promote the conven- ience of members of Congress, and next of the public, in con- sulting them. The possession of talents adequate to the per- formance of those duties affords no inference of any compe- tency to make or approve rules and regulations respecting copy- right. In fact the inference is just the opposite.^ Under the proposed bill the copyright is acquired by the mere publication of the work with the specified notice upon it ; the requirements in respect of registration and the deposit of copies do not need to be supplemented by rules and regulations, and any exposition of them by the Register or Librarian would be an impertinence. Besides, under the Senate Bill, &J)reach of the rules and regulations will not affect the validity of the copyright. The consequences of disobedience are in conjecture, and the Librarian has no power to ordain what those conse- quences shall be. A rule without a penalty for its violation is, like the Danish custom, more honored in the breach than the observance, because it is no rule at all. Why, then, does the Librarian seek the power to vex and harrass the copyright taker with rules and regulations ? A rule is to be learned and obeyed; a regulation must regulate something. Is it to aggrandize his office and himself as the incumbent of it? I can imagine no other reason. Does he wish to play to his Register the role of a cabinet minister ? Do visions of greatness flutter through his brain? "Calling my ■ Mi ' ; 1 In 1897 the office of Register was created and the duties relating to copyright were imposed upon him "under the direction and super- vision of the Librarian." Act of Feb. 19, 1897. 106 "officers about me, in my branched velvet gown; — And then to "have the humor of state; and after a demure travel of regard, "telling them I know my place as I would they should do "theirs, to ask for my kinsman Toby, — I extend my hand to "him thus, quenching my familiar smile with an austere regard "of control"^ Bureaus of espionage, correspondence and administration must, of course, be established wilJi a corps of clerks, to enable the Librarian or the Register to learn what copyrighted books should be deposited, and to make "specific written demands" for them, and to serve the demands upon the copyright proprietor. For the government of these subordinates rules and regulations will be required, but the Librarian will not need the sanction of Congress to adopt or approve those ; he will need an appropria- tion. Five was the number of good men, who, if the Angel could have found them, might have saved the two wicked cities from the fiery wrath; and, if five good things could be found in the thirty-six pages and fifty-six sections of this bill, it m,ight be worth while to undertake their rescue and redemption. But 1 think the vision of Uriel is needed to discover them. The bill is shot through, in warp and weft, with so many sinister pro- visions that the detachment from them of the useful provis- ions would be a hopeless task. Usually a revising statute clings as closely as pqssible to the frame of the old statute, so that the public, in studying the new statute, may be guided by the interpretations of the old one. This bill departs from that useful principle, and pre- sents a new frame-work and a new phrasing, the meaning of which can be settled with certainty only after years of litiga- tion. This is all unnecessary for any legitimate purpose. Mr. G. H. Putnam, at a date before his brother had been ap- pointed the Librarian of Congress, in an article written by him and printed in the Forum for January, 1894, and speaking of a revision of the copyright laws, said as follows : "Work of this kind, instead of being referred at the outset 1 Malvolio in Twelfth Night. II. 5, 44. 107 to a Congressional committee whose interest in the subject or ability to consider it intelligently could not with certainty be depended upon, ought to be entrusted to a Commission of ex- perts selected for the purpose, which should be instructed to take evidence and to submit a report to serve as a basis for legislation. This is the system that has been pursued with the copyright legislation of England, France, Germany, and Italy, and is what might be termed the scientific method of arriving at satisfactory legislation on subjects of intricacy or complexity. "■'■ When Mr. Putnam, the publisher, wrote as above, he prob- ably did not anticipate that his- brother would be appointed to the office of , Librarian of Congress, and be in a position where he might shape the framework of legislation, if Congress could be induced to move. I presume that the "commission of experts" contemplated at the time by Mr. Putnam, as an appropriate body to frame a copyright law, was a commission to be made up under the auth/>rity of Congress, and to include persons who should con- sider in an impartial spirit the interests of publishers, authors, and readers of books, and the grand objects to be promoted by a. copyright law. To suppose that he meant less would be to impeach his good faith as well as his judgment. So under- standing his suggestion, its wisdom is conspicuous at the present hour. The present bill was not framed by such a commission as Mr. Putnam, the publisher, then thought to be appropriate and necessary. If he was right then, he is wrong now. The Committees of the fifty-ninth Congress have neither more nor less interest in, or ability to consider intelligently (Mr. Putnam's words) the subject of copyright, than the Com- mittees of the fifty-first Congress. Mr. Putnam's arraignment was of all Congresses. How comes it, then, that he is willing to waive the views which he formerly expressed ? Is it because he is now able to reach the ear of the Executive, and his brother occupies the Librarian's office? Mr. G-. H. Putnam is known, somewhat, as a reformer, and speaks sometimes, and when he I'The article is also contained in a book "The Question bi Copyright" compiled by Geo. Haven Putnam, second edition, published by G. P. Putnam's SoM, N. Y. 1896, pp. 112-1^. 108 does speaks well, upon subjects of civil and municipal reform. 1 should be reluctant to believe that he is in the class of reform- ers who "Compound for sins they are inclin'd to, By damning those they have no mind to." The classes who are interested in copyright are, in the order of the importance of their respective interests, the people, the authors, the individual readers including the student and the buyers of books for personal use, the book-sellers and publishers. The interests of the first three are paramount, and those of the other two are subordinate. In the framing of the present bill the author class was not adequately represented ; the people and the individual student were not represented at all, their interests being remitted, in the Librarian's words, to the "third great estate," the newspapers and magazines; the publishers mono- polized the occasion. If it is deemed necessary to thoroughly revise the existing law and by such revision to harmonize conflicting provisions, if there are any; to amend defects; to supply deficiencies, if there are such; and to provide for new kinds of intellectual creations, or to incorporate in the law new and untried princi- ples, the presiding judges of the nine federal circuits would form an admirable commission to undertake the work. If any of them should be unwilling to serve, then the judge next in seniority might be designated. If five members should con- stitute a quorum, they could assemble, without excessive in- convenience, in different parts of the country for hearings or consultations, and every geographical section would thus be represented. A single secretary, carefully selected, would be able to perform all necessary clerical work. They might hear the "selfish interests" and invite, by special invitation, men of learning to submit views, orally or in writing, on the general subject or upon particular points. Their skill in interpreting statutes would enable them to frame a consistent and in- telligible one. They would bring to their consideration of the subject the knowledge derived from litigation under the present statute in their courts. Their judicial training would enable them to "weigh evidence, to balance arguments, to decade be- 109 tween conflicting interests, and to resist the importunity of the self-seeking. Their proposals would be recommended by their high character, experience, abilities, and station, but would be subject necessarily to revision by Congress. There would be no need of fearing pit-faUs and deceptions. The advantage that a statute would be produced which would be workable is of importance, and is one which the proposed bill, if enacted as it now stands, would not possess. Finally there would be the inestimable boon that we should have a statute which had not been moulded in the process of making by the hands of the Putnam brothers. If, however, a commission so formed should be deemed inex- pedient, then the commission now and for several years acting under the authority of Congress and engaged in revising the United States general statutes, with posibly some additions representing the highest literature and scholarship, would be much more competent to perform the work than the Librarian with his "general advisers" and main body. In the forfegoing discussion T have not distinguished between the bill as presented by the Librarian and that reported by the Committees. Distinctions did not seem to be material. The essential subjects of my criticism are found in the Librarian's bill. Mr. Chairman Currier said in his Keport,^ "As a re- sult of the hearings, the bill was redrafted by the gentleman who framed it, &c," I do not know who that gentleman was. The Librarian did not give any intimation, and I have not cared to surmise. And I have not expressed, or have not in- tended to express, any positive opinion as to whether the malefic results of the scheme, which I have partly outlined in the fore- going pages, arose from his bungling or from an intelligent plan to accomplish them. In truth, I have been of two minds on that question, inclining sometimes to one view of the drafts- man's skill, and sometimes to the other, l^either his identity nor his experience are relevant, because the operation of the law is the prime consideration. The bill, r^arded as a whole and p. /. no in many of its details, seema to be amateurish, but some of its provisions possess a coherency of mitual relation which indi- cates an experienced hand, a reasoned plan, and definite ob- jects. For example, the provision, lurking with innocent as- pect in an obscure comer, which permits a corporation with un- limited life, as an employer, to secure copyright for an un- limited period, was a masterful piece of finesse, while the pro- ceedings directed for the exclusion of foreign copies of foreign works are puerile. Although darkness or a mask conceals the features of the burglar, the dark lantern and the jimmy reveal his intention. Whether the draftsman of the bill was a tyro or an adept, the fact that no opportunity was omitted of taking from the people and from the author some substantial right, dis- closes a constantly controlling and consistently followed furtive purpose. If any reshaping of the bill should be attempted, the task should not be remitted to him. Postscript. — The criticisms of book-publishers, which I have found it necessary to make in the foregoing pages, have been directed against those who have been, or are, perniciously active in promoting the bill, and not against book-publishers in gen- eral, among whom are as many liberal and high-minded gentle- men as can be found in any other field of enterprise. It has not always been possible, in rapid writing, and in the interest of brevity, to express the distinction. While I do not think that I can have been misunderstood, it is proper to make this disclaimer.