CHAPTER 23.

COPYRIGHT AND LIBRARIES.

The preservation of literature through public libraries has been and will

ever be one of the most signal benefits which civilization has brought to

mankind. When we consider the multitude of books which have perished from

the earth, from the want of a preserving hand, a lively sense of regret

comes over us that so few libraries have been charged with the duty of

acquiring and keeping every publication that comes from the press. Yet we

owe an immeasurable debt to the wisdom and far-sightedness of those who,

centuries ago, provided by this means for the perpetuity of literature.

The earliest step taken in this direction appears to have been in France.

By an ordinance proclaimed in 1537, regulating the printing of books, it

was required that a copy of each work issued from the press should be

deposited in the royal library. And it was distinctly affirmed that the

ground of this exaction was to preserve to posterity the literature of

the time, which might otherwise disappear.[2] This edict of three

centuries and a half ago was the seed-grain from which has grown the

largest library yet gathered in the world--the _Bibliothèque Nationale_

of France. It antedated by more than two hundred years, any similar

provision in England for the preservation of the national literature.

It is a notable fact that the United States of America was the first

nation that ever embodied the principle of protection to the rights of

authors in its fundamental law. "The Congress shall have power to promote

the progress of science and useful arts, by securing for limited times to

authors and inventors the exclusive right to their respective writings

and discoveries." Thus anchored in the Constitution itself, this

principle has been further recognized by repeated acts of Congress, aimed

in all cases at giving it full practical effect.

If it is asked why the authors of the Constitution gave to Congress no

plenary power, which might have authorized a grant of copyright in

perpetuity, the answer is, that in this, British precedent had a great,

if not a controlling influence. Copyright in England, by virtue of the

statute of Anne, passed in 1710 (the first British copyright act), was

limited to fourteen years, with right of renewal, by a living author, of

only fourteen years more; and this was in full force in 1787, when our

Constitution was framed. Prior to the British statute of 1710, authors

had only what is called a common law right to their writings; and however

good such a right might be, so long as they held them in manuscript, the

protection to printed books was extremely uncertain and precarious.

It has been held, indeed, that all copyright laws, so far from

maintaining an exclusive property right to authors, do in effect deny it

(at least in the sense of a natural right), by explicitly limiting the

term of exclusive ownership, which might otherwise be held (as in other

property) to be perpetual. But there is a radical distinction between the

products of the brain, when put in the concrete form of books and

multiplied by the art of printing, and the land or other property which

is held by common law tenure. Society views the absolute or exclusive

property in books or inventions as a monopoly. While a monopoly may be

justified for a reasonable number of years, on the obvious ground of

securing to their originators the pecuniary benefit of their own ideas, a

perpetual monopoly is generally regarded as odious and unjust. Hence

society says to the author or inventor: "Put your ideas into material

form, and we will guarantee you the exclusive right to multiply and sell

your books or your inventions for a term long enough to secure a fair

reward to you and to your family; after that period we want your

monopoly, with its individual benefits, to cease in favor of the greatest

good of all." If this appears unfair to authors, who contribute so

greatly to the instruction and the advancement of mankind, it is to be

considered that a perpetual copyright would (1) largely increase the cost

of books, which should be most widely diffused for the public benefit,

prolonging the enhanced cost indefinitely beyond the author's lifetime;

(2) it would benefit by a special privilege, prolonged without limit, a

class of book manufacturers or publishers who act as middle-men between

the author and the public, and who own, in most cases, the entire

property in the works of authors deceased, and which they did not

originate; (3) it would amount in a few centuries to so vast a sum, taxed

upon the community who buy books, that the publishers of Shakespeare's

works, for example, who under perpetual copyright could alone print the

poet's writings, might have reaped colossal fortunes, perhaps unequalled

by any private wealth yet amassed in the world.

If it is said that copyright, thus limited, is a purely arbitrary right,

it may be answered that all legal provisions are arbitrary. That which is

an absolute or natural right, so long as held in idea or in manuscript,

becomes, when given to the world in multiplied copies, the creature of

law. The most that authors can fairly claim is a sufficiently prolonged

exclusive right to guarantee them for a lifetime the just reward of their

labors, with a reversion for their immediate heirs. That such exclusive

rights should run to their remotest posterity, or, _a fortiori_, to mere

merchants or artificers who had no hand whatever in the creation of the

intellectual work thus protected, would be manifestly unjust. The

judicial tribunals, both in England and America, have held that copyright

laws do not affirm an existing right, but create a right, with special

privileges not before existing, and also with special limitations.

The earliest copyright enactment of 1790 granted the exclusive privilege

of printing his work to the author or his assigns for 14 + 14, or

twenty-eight years in all.

The act further required entry of the title, before publication, in the

office of the Clerk of the United States District Court in the State

where the author or proprietor resided.

This remained the law, with slight amendment, until 1831, when a new

copyright act extended the duration of copyright from fourteen to

twenty-eight years for the original, or first term, with right of renewal

to the author (now first extended to his widow or children, in case of

his decease) for fourteen additional years, making forty-two years in

all.

By the same act the privilege of copyright was extended to cover musical

compositions, as it had been earlier extended (in 1802) to include

designs, engravings, and etchings. Copyright was further extended in 1856

to dramatic compositions, and in 1865 to photographs and negatives

thereof. In 1870 a new copyright code, to take the place of all existing

and scattered statutes, was enacted, and there were added to the lawful

subjects of copyright, paintings, drawings, chromos, statues, statuary,

and models or designs intended to be perfected as works of the fine

arts. And finally, by act of March 3, 1891, the benefits of copyright

were extended so as to embrace foreign authors. In 1897, Congress created

the office of Register of Copyrights, but continued the Copyright office,

with its records, in the Library of Congress.

In 1846, the first enactment entitling the Library of the United States

Government to a copy of every work protected by copyright was passed.

This act, to establish the Smithsonian Institution, required that one

copy of each copyright publication be deposited therein, and one copy in

the Library of Congress. No penalties were provided, and in 1859, on

complaint of the authorities of the Smithsonian Institution that the law

brought in much trash in the shape of articles which were not books, the

law was repealed, with the apparent concurrence of those in charge of the

Congressional Library.

This left that Library without any accessions of copyright books until

1865, when, at the instance of the present writer, the Library Committee

recommended, and Congress passed an act restoring the privilege to the

Library of Congress. But it was found to require, in order to its

enforcement, frequent visits to the records of the clerks of United

States District Courts in many cities, with costly transcripts of records

in more than thirty other offices, in order to ascertain what books had

actually been copyrighted. To this was added the necessity of issuing

demands upon delinquent authors or publishers for books not sent to the

Library; no residence of the delinquents, however, being found in any of

the records, which simply recorded those claiming copyright as "of the

said District."

It resulted that no complete, nor even approximate compliance with the

law was secured, and after five years' trial, the Librarian was obliged

to bring before the committees of Congress the plan of a copyright

registry at the seat of government, as had been the requirement in the

case of Patents from the beginning.

The law of copyright, as codified by act of July 8, 1870, made an epoch

in the copyright system of the United States. It transferred the entire

registry of books and other publications, under copyright law, to the

city of Washington, and made the Librarian of Congress sole register of

copyrights, instead of the clerks of the District Courts of the United

States. Manifold reasons existed for this radical change, and those which

were most influential with Congress in making it were the following:

1. The transfer of the copyright records to Washington it was foreseen

would concentrate and simplify the business, and this was a cardinal

point. Prior to 1870 there were between forty and fifty separate and

distinct authorities for issuing copyrights. The American people were put

to much trouble to find out where to apply, in the complicated system of

District Courts, several of them frequently in a single State, to enter

titles for publication. They were required to make entry in the district

where the applicant resided, and this was frequently a matter of doubt.

Moreover, they were required to go to the expense and trouble of

transmitting a copy of the work, after publication, to the District

clerk, and another copy to the Library of Congress. Were both copies

mailed to Washington (post-free by law) this duty would be diminished by

one-half.

2. A copyright work is not an invention nor a patent; it is a

contribution to literature. It is not material, but intellectual, and has

no natural relation to a department which is charged with the care of the

mechanic arts; and it belongs rather to a national library system than to

any other department of the civil service. The responsibility of caring

for it would be an incident to the similar labors already devolved upon

the Librarian of Congress; and the receipts from copyright certificates

would much more than pay its expense, thus leaving the treasury the

gainer by the change.

3. The advantage of securing to our national library a complete

collection of all American copyright publications can scarcely be

over-estimated. If such a law as that enacted in 1870 had been enforced

since the beginning of the government, we should now have in the Library

of Congress a complete representation of the product of the American mind

in every department of science and literature. Many publications which

are printed in small editions, or which become "out of print" from the

many accidents which continually destroy books, would owe to such a

library their sole chance of preservation. We ought to have one

comprehensive library in the country, and that belonging to the nation,

whose aim it should be to preserve the books which other libraries have

not the room nor the means to procure.

4. This consideration assumes additional weight when it is remembered

that the Library of Congress is freely open to the public day and evening

throughout the year, and is rapidly becoming the great reference library

of the country, resorted to not only by Congress and the residents of

Washington, but by students and writers from all parts of the Union, in

search of references and authorities not elsewhere to be found. The

advantage of having all American publications accessible upon inquiry

would be to build up at Washington a truly national library,

approximately complete and available to all the people.

These considerations prevailed with Congress to effect the amendment in

copyright registration referred to.

By enactment of the statute of 1870 all the defects in the methods of

registration and deposit of copies were obviated. The original records of

copyright in all the States were thenceforward kept in the office of the

Librarian of Congress. All questions as to literary property, involving a

search of records to determine points of validity, such as priority of

entry, names and residence of actual owners, transfers or assignments,

timely deposit of the required copies, etc., could be determined upon

inquiry at a single office of record. These inquiries are extremely

numerous, and obviously very important, involving frequently large

interests in valuable publications in which litigation to establish the

rights of authors, publishers or infringers has been commenced or

threatened. By the full records of copyright entries thus preserved,

moreover, the Library of Congress (which is the property of the nation)

has been enabled to secure what was before unattainable, namely, an

approximately complete collection of all American books, etc., protected

by copyright, since the legislation referred to went into effect. The

system has been found in practice to give general satisfaction; the

manner of securing copyright has been made plain and easy to all, the

office of record being now a matter of public notoriety; and the test of

experience during thirty years has established the system so thoroughly

that none would be found to favor a return to the former methods.

The Act of 1870 provided for the removal of the collection of copyright

books and other publications from the over-crowded Patent Office to the

Library of Congress. These publications were the accumulations of about

eighty years, received from the United States District Clerks' offices

under the old law. By request of the Commissioner of Patents all the law

books and a large number of technical works were reserved at the

Department of the Interior. The residue, when removed to the Capitol,

were found to number 23,070 volumes, a much smaller number than had been

anticipated, in view of the length of time during which the copy tax had

been in operation. But the observance of the acts requiring deposits of

copyright publications with the Clerks of the United States District

Courts had been very defective (no penalty being provided for

non-compliance), and, moreover, the Patent Office had failed to receive

from the offices of original deposit large numbers of publications which

should have been sent to Washington. From one of the oldest States in the

Union not a single book had been sent in evidence of copyright. The

books, however, which were added to the Congressional Library, although

consisting largely of school books and the minor literature of the last

half century, comprised many valuable additions to the collection of

American books, which it should be the aim of a National Library to

render complete. Among them were the earliest editions of the works of

many well-known writers, now out of print and scarce.

The first book ever entered for copyright privileges under the laws of

the United States was "The Philadelphia Spelling Book," which was

registered in the Clerk's Office of the District of Pennsylvania, June 9,

1790, by John Barry as author. The spelling book was a fit introduction

to the long series of books since produced to further the diffusion of

knowledge among men. The second book entered was "The American

Geography," by Jedediah Morse, entered in the District of Massachusetts

on July 10, 1790, a copy of which is preserved in the Library of

Congress. The earliest book entered in the State of New York was on the

30th of April, 1791, and it was entitled "The Young Gentleman's and

Lady's Assistant, by Donald Fraser, Schoolmaster."

Objection has occasionally, though rarely, been made to what is known as

the copy-tax, by which two copies of each publication must be deposited

in the National Library. This requirement rests upon two valid grounds:

(1) The preservation of copies of everything protected by copyright is

necessary in the interest of authors and publishers, in evidence of

copyright, and in aid of identification in connection with the record of

title; (2) the library of the government (which is that of the whole

people) should possess and permanently preserve a complete collection of

the products of the American press, so far as secured by copyright. The

government makes no unreasonable exaction in saying to authors and

publishers: "The nation gives you exclusive right to make and sell your

publication, without limit as to quantity, for forty-two years; give the

nation in return two copies, one for the use and reference of Congress

and the public in the National Library, the other for preservation in the

copyright archives, in perpetual evidence of your right."

In view of the valuable monopoly conceded by the public, does not the

government in effect give far more than a _quid pro quo_ for the

copy-tax? Of course it would not be equitable to exact even one copy of

publications not secured by copyright, in which case the government gives

nothing and gets nothing; but the exaction of actually protected

publications, while it is almost unfelt by publishers, is so clearly in

the interest of the public intelligence, as well as of authors and

publishers themselves, that no valid objection to it appears to exist. In

Great Britain five copies of every book protected by copyright are

required for five different libraries, which appears somewhat

unreasonable.

Regarding the right of renewal of the term of copyright, it is a

significant fact that it is availed of in comparatively few instances,

compared with the whole body of publications. Multitudes of books are

published which not only never reach a second edition, but the sale of

which does not exhaust more than a small part of the copies printed of

the first. In these cases the right of renewal is waived and suffered to

lapse, from defect of commercial value in the work protected. In many

other cases the right of renewal expires before the author or his assigns

bethink them of the privilege secured to them under the law. It results

that more than nine-tenths, probably, of all books published are free to

any one to print, without reward or royalty to their authors, after a

very few years have elapsed. On the other hand, the exclusive right in

some publications of considerable commercial value is kept alive far

beyond the forty-two years included in the original and the renewal term,

by entry of new editions of the work, and securing copyright on the same.

While this method may not protect any of the original work from

republication by others, it enables the publishers of the copyright

edition to advertise such unauthorized reprints as imperfect, and without

the author's or editor's latest revision or additions.

The whole number of entries of copyright in the United States since we

became a nation considerably exceeds a million and a half. It may be of

interest to give the aggregate number of titles of publications entered

for copyright in each year since the transfer of the entire records to

Washington in 1870.

COPYRIGHTS REGISTERED IN THE UNITED STATES,

1870-1899.

1870 5,600 1874 16,283 1878 15,798

1871 12,688 1875 14,364 1879 18,125

1872 14,164 1876 14,882 1880 20,686

1873 15,352 1877 15,758 1881 21,075

1882 22,918 1888 38,225 1894 62,762

1883 25,273 1889 40,777 1895 67,572

1884 26,893 1890 42,758 1896 72,470

1885 28,410 1891 48,908 1897 74,321

1886 31,241 1892 54,735 1898 76,874

1887 35,083 1893 58,936 1899 86,492

Total, 30 years, 1,079,445

It will readily be seen that this great number of copyrights does not

represent books alone. Many thousands of entries are daily and weekly

periodicals claiming copyright protection, in which case they are

required by law to make entry of every separate issue. These include a

multitude of journals, literary, political, scientific, religious,

pictorial, technical, commercial, agricultural, sporting, dramatic, etc.,

among which are a number in foreign languages. These entries also embrace

all the leading monthly and quarterly magazines and reviews, with many

devoted to specialties--as metaphysics, sociology, law, theology, art,

finance, education, and the arts and sciences generally. Another large

class of copyright entries (and the largest next to books and

periodicals) is musical compositions, numbering recently some 20,000

publications yearly. Much of this property is valuable, and it is nearly

all protected by entry of copyright, coming from all parts of the Union.

There is also a large and constantly increasing number of works of

graphic art, comprising engravings, photographs, photogravures, chromos,

lithographs, etchings, prints, and drawings, for which copyright is

entered. The steady accumulation of hundreds of thousands of these

various pictorial illustrations will enable the government at no distant

day, without a dollar of expense, to make an exhibit of the progress of

the arts of design in America, which will be highly interesting and

instructive. An art gallery of ample dimensions for this purpose is

provided in the new National Library building.

It remains to consider briefly the principles and practice of what is

known as international copyright.

Perhaps there is no argument for copyright at all in the productions of

the intellect which is not good for its extension to all countries. The

basis of copyright is that all useful labor is worthy of a recompense;

but since all human thought when put into material or merchantable form

becomes, in a certain sense, public property, the laws of all countries

recognize and protect the original owners, or their assigns to whom they

may convey the right, in an exclusive privilege for limited terms only.

Literary property therefore is not a natural right, but a conventional

one. The author's right to his manuscript is, indeed, absolute, and the

law will protect him in it as fully as it will guard any other property.

But when once put in type and multiplied through the printing-press, his

claim to an exclusive right has to be guarded by a special statute,

otherwise it is held to be abandoned (like the articles in a newspaper)

to the public. This special protection is furnished in nearly all

civilized countries by copyright law.

What we call "copyright" is an exclusive right to multiply copies of any

publication for sale. Domestic copyright, which is all we formerly had in

this country, is limited to the United States. International copyright,

which has now been enacted, extends the right of American authors to

foreign countries, and recognizes a parallel right of foreign authors in

our own. There is nothing in the constitutional provision which restrains

Congress from granting copyright to other than American citizens. Patent

right, coming under the same clause of the Constitution, has been

extended to foreigners. Out of over 20,000 patents annually issued, about

2,500 (or 12 per cent.) are issued to foreigners, while American patents

are similarly protected abroad. If we have international patent right,

why not international copyright? The grant of power is the same; both

patent right and copyright are for a limited time; both rights during

this time are exclusive; and both rest upon the broad ground of the

promotion of science and the useful arts. If copyright is justifiable at

all, if authors are to be secured a reward for their labors, they claim

that all who use them should contribute equally to this result. The

principle of copyright once admitted, it cannot logically be confined to

State lines or national boundaries. There appears to be no middle ground

between the doctrine of common property in all productions of the

intellect--which leads us to communism by the shortest road--and the

admission that copyright is due, while its limited term lasts, from all

who use the works of an author, wherever found.

Accordingly, international copyright has become the policy of nearly all

civilized nations. The term of copyright is longer in most countries than

in the United States, ranging from the life of the author and seven years

beyond, in England, to a life term and fifty years additional in France

and Russia. Copyright is thus made a life tenure and something more in

all countries except our own, where its utmost limit is forty-two years.

This may perhaps be held to represent a fair average lifetime, reckoned

from the age of intellectual maturity. There have not been wanting

advocates for a perpetual copyright, to run to the author and his heirs

and assigns forever. This was urged before the British Copyright

Commission in 1878 by leading British publishers, but the term of

copyright is hitherto, in all nations, limited by law.

Only brief allusion can be made to the most recent (and in some respects

most important) advance step which has been taken in copyright

legislation in the United States. This act of Congress is aimed at

securing reciprocal protection to American and foreign authors in the

respective countries which may comply with its provisions. There is here

no room to sketch the hitherto vain attempt to secure to authors, here

and abroad, an international protection to their writings. Suffice it to

say that a union of interests was at last effected, whereby authors,

publishers and manufacturers are supposed to have secured some measure of

protection to their varied interests. The measure is largely

experimental, and the satisfaction felt over its passage into law is

tempered by doubt in various quarters as to the justice, or liberality,

or actual benefit to authors of its provisions. What is to be said of a

statute which was denounced by some Senators as a long step backward

toward barbarism, and hailed by others as a great landmark in the

progress of civilization?

The main features added to the existing law of copyright by this act,

which took effect July 1, 1891, are these:

1. All limitation of the privilege of copyright to citizens and residents

of the United States is repealed.

2. Foreigners applying for copyright are to pay fees of $1 for record, or

$1.50 for certificate of copyright.

3. Importation of books, photographs, chromos or lithographs entered here

for copyright is prohibited, except two copies of any book for use and

not for sale.

4. The two copies of books, photographs, chromos or lithographs deposited

with the Librarian of Congress must be printed from type set, or plates,

etc., made in the United States. It follows that all foreign works

protected by American copyright must be wholly manufactured in this

country.

5. The copyright privilege is restricted to citizens or subjects of

nations permitting the benefit of copyright to Americans on

substantially the same terms as their own citizens, or of nations who

have international agreements providing for reciprocity in the grant of

copyright, to which the United States may at its pleasure become a party.

6. The benefit of copyright in the United States is not to take effect as

to any foreigner until the actual existence of either of the conditions

just recited, in the case of the nation to which he belongs, shall have

been made known by a proclamation of the President of the United States.

One very material benefit has been secured through international

copyright. Under it, authors are assured the control of their own text,

both as to correctness and completeness. Formerly, republication was

conducted on a "scramble" system, by which books were hastened through

the press, to secure the earliest market, with little or no regard to a

correct re-production. Moreover, it was in the power of the American

publisher of an English book, or of a British publisher of an American

one, to alter or omit passages in any work reprinted, at his pleasure.

This license was formerly exercised, and imperfect, garbled, or truncated

editions of an author's writings were issued without his consent, an

outrage against which international copyright furnishes the only

preventive.

Another benefit of copyright between nations has been to check the

relentless flood of cheap, unpaid-for fiction, which formerly poured from

the press, submerging the better literature. The Seaside and other

libraries, with their miserable type, flimsy paper, and ugly form, were

an injury alike to the eyesight, to the taste, and in many cases, to the

morals of the community. More than ninety per cent. of these wretched

"Libraries" were foreign novels. An avalanche of English and translated

French novels of the "bigamy school" of fiction swept over the land,

until the cut-throat competition of publishers, after exhausting the

stock of unwholesome foreign literature, led to the failure of many

houses, and piled high the counters of book and other stores with

bankrupt stock. Having at last got rid of this unclean brood, (it is

hoped forever) we now have better books, produced on good paper and type,

and worth preserving, at prices not much above those of the trash

formerly offered us.

At the same time, standard works of science and literature are being

published in England at prices which tend steadily toward increased

popular circulation. Even conservative publishers are reversing the rule

of small editions at high prices, for larger editions at low prices. The

old three-volume novel is nearly supplanted by the one volume,

well-printed and bound book at five or six shillings. Many more

reductions would follow in the higher class of books, were not the

measure of reciprocal copyright thus far secured handicapped by the

necessity of re-printing on this side at double cost, if a large American

circulation is in view.

The writers of America, with the steady and rapid progress of the art of

making books, have come more and more to appreciate the value of their

preservation, in complete and unbroken series, in the library of the

government, the appropriate conservator of the nation's literature.

Inclusive and not exclusive, as this library is wisely made by law, so

far as copyright works are concerned, it preserves with impartial care

the illustrious and the obscure. In its archives all sciences and all

schools of opinion stand on equal ground. In the beautiful and ample

repository, now erected and dedicated to literature and art through the

liberal action of Congress, the intellectual wealth of the past and the

present age will be handed down to the ages that are to follow.

FOOTNOTES:

[2] G. H. Putnam, "Books and their makers in the Middle Ages," N. Y.

1897, vol. 2, p. 447.

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