Copyright, which is the exclusive liberty reserved to an author and
his assigns of printing or otherwise multiplying copies of his book
during certain fixed periods of time, is a right of modern origin.
There is nothing about copyright in Justinian's compilations.
It is a mistake to suppose that books did not circulate freely in the
era of manuscripts. St. Augustine was one of the most popular authors
that ever lived. His _City of God_ ran over Europe after a fashion
impossible to-day. Thousands of busy hands were employed, year out and
year in, making copies for sale of this famous treatise. Yet Augustine
had never heard of copyright, and never received a royalty on sales in
his life.
The word 'copyright' is of purely English origin, and came into
existence as follows:
The Stationers' Company was founded by royal charter in 1556, and from
the beginning has kept register-books, wherein, first, by decrees of
the Star Chamber, afterwards by orders of the Houses of Parliament,
and finally by Act of Parliament, the titles of all publications and
reprints have had to be entered prior to publication.
None but booksellers, as publishers were then content to be called,
were members of the Stationers' Company, and by the usage of the
Company no entries could be made in their register-books except in the
names of members, and thereupon the book referred to in the entry
became the 'copy' of the member or members who had caused it to be
registered.
By virtue of this registration the book became, in the opinion of the
Stationers' Company, the property _in perpetuity_ of the member or
members who had effected the registration. This was the 'right' of the
stationer to his 'copy.'
Copyright at first is therefore not an author's, but a bookseller's
copyright. The author had no part or lot in it unless he chanced to be
both an author and a bookseller, an unusual combination in early days.
The author took his manuscript to a member of the Stationers' Company,
and made the best bargain he could for himself. The stationer, if
terms were arrived at, carried off the manuscript to his Company and
registered the title in the books, and thereupon became, in his
opinion, and in that of his Company, the owner, at common law, in
perpetuity of his 'copy.'
The stationers, having complete control over their register-books,
made what entries they chose, and all kinds of books, even Homer and
the Classics, became the 'property' of its members. The booksellers,
nearly all Londoners, respected each other's 'copies,' and jealously
guarded access to their registers. From time to time there were sales
by auction of a bookseller's 'copies,' but the public--that is, the
country booksellers, for there were no other likely buyers--were
excluded from the sale-room. A great monopoly was thus created and
maintained by the trade. There was never any examination of title to a
bookseller's copy. Every book of repute was supposed to have a
bookseller for its owner. Bunyan's _Pilgrim's Progress_ was Mr.
Ponder's copy, Milton's _Paradise Lost_ Mr. Tonson's copy, _The Whole
Duty of Man_ Mr. Eyre's copy, and so on. The thing was a corrupt and
illegal trade combination.
The expiration of the Licensing Act, and the consequent cessation of
the penalties it inflicted upon unlicensed printing, exposed the
proprietors of 'copies' to an invasion of their rights, real or
supposed, and in 1703, and again in 1706 and 1709, they applied to
Parliament for a Bill to protect them against the 'ruin' with which
they alleged themselves to be threatened.[A]
[Footnote A: What the booksellers wanted was not to be left to their
common law remedy--_i.e._, an action of trespass on the case--but to
be supplied with penalties for infringement, and especially with the
right to seize and burn unauthorized editions.]
In 1710 they got what they asked for in the shape of the famous
Statute of Queen Anne, the first copyright law in the world. A truly
English measure, ill considered and ill drawn, which did the very last
thing it was meant to do--viz., destroy the property it was intended
to protect.
By this Act, in which the 'author' first makes his appearance actually
in front of the 'proprietor,' it was provided that, _in case of new
books_, the author and his assigns should have the sole right of
printing them for fourteen years, and if at the end of that time the
author was still alive, a second term of fourteen years was conceded.
In the case of _existing books_, there was to be but one term--viz.,
twenty-one years, from August 10, 1710.
Registration at the Stationers' Company was still required, but
nothing was said as to who might make the entries, or into whose names
they were to be made.
Then followed the desired penalties for infringement. The booksellers
thought the terms of years meant no more than that the penalties were
to be limited by way of experiment to those periods.
Many years flew by before the Stationers' Company discovered the
mischief wrought by the statute they had themselves promoted. To cut a
long matter short, it was not until 1774 that the House of Lords
decided that, whether there ever had been a perpetuity in literary
property at common law or not, it was destroyed by the Act of Queen
Anne, and that from and after the passing of that law neither author,
assignee, nor proprietor of 'copy' had any exclusive right of
multiplication, save for and during the periods of time the statute
created.
It was a splendid fight--a Thirty Years' War. Great lawyers were fee'd
in it; luminous and lengthy judgments were delivered. Mansfield was a
booksellers' man; Thurlow ridiculed the pretensions of the Trade. It
can be read about in _Boswell's Johnson_ and in Campbell's _Lives of
the Lord Chancellors_. The authors stood supinely by, not contributing
a farthing towards the expenses. It was a booksellers' battle, and the
booksellers were beaten, as they deserved to be.
All this is past history, in which the modern money-loving, motoring
author takes scant pleasure. Things are on a different footing now.
The Act of 1842 has extended the statutory periods of protection. The
perpetuity craze is over. A right in perpetuity to reprint Frank
Fustian's novel or Tom Tatter's poem would not add a penny to the
present value of the copyright of either of those productions. In
business short views must prevail. An author cannot expect to raise
money on his hope of immortality. Milton's publisher, good Mr.
Symonds, probably thought, if he thought about it at all, that he was
buying _Paradise Lost_ for ever when he registered it as his 'copy' in
the books of his Company; but into the calculations he made to
discover how much he could afford to give the author posterity did not
and could not enter. How was Symonds to know that Milton's fame was to
outlive Cleveland's or Flatman's?
How many of the books published in 1905 would have any copyright cash
value in A.D. 2000? I do not pause for a reply.
The modern author need have no quarrel with the statutory periods
fixed by the Act of 1842,[A] though common-sense has long since
suggested that a single term, the author's life and thirty or forty
years after, should be substituted for the alternative periods named
in the Act.
[Footnote A: Author's life _plus_ seven years, or forty-two years
from date of publication, whichever term is the longer. The great
objection to the second term is that an author's books go out of
copyright at different dates, and the earlier editions go out
first.]
What the modern author alone desiderates is a big, immediate, and
protected market.
The United States of America have been a great disappointment to many
an honest British author. In the wicked old days when the States took
British books without paying for them they used to take them in large
numbers, but now that they have turned honest and passed a law
allowing the British author copyright on certain terms, they have in
great measure ceased to take; for, by the strangest of coincidences,
no sooner were British novels, histories, essays, and the like,
protected in America, than there sprang up in the States themselves,
novelists, historians, and essayists, not only numerous enough to
supply their own home markets, but talented enough to cross the
Atlantic in large numbers and challenge us in our own. Such a reward
for honesty was not contemplated.
International copyright and the Convention of Berne are things to be
proud of and rejoice over. As the first chapter in a Code of Public
European Law, they may mark the beginning of a time of settled peace,
order, and disarmament, but they have not yet enriched a single
author, though hereafter possibly an occasional novelist or
play-wright may prosper greatly under their provisions.
The copyright question is now at last really a settled question, save
in a single aspect of it. What, if anything, should be done in the
case of those authors, few in number, whose literary lives prove
longer than the period of statutory protection? Should any distinction
in law be struck between a Tennyson and a Tupper? between--But why
multiply examples? There is no need to be unnecessarily offensive.
The law and practice of to-day give the meat that remains on the bones
of the dead author after the expiration of the statutory period of
protection to the Trade. Any publisher who likes to bring out an
edition can do so, though by doing so he does not gain any exclusive
rights. A brother publisher may compete with him. As a result
the public is usually well served with cheap editions of those
non-copyright authors whose works are worth reprinting the moment the
copyright expires.
Some lovers of justice, however, think that it is unnecessary all at
once to endow the Trade with these windfalls, and that if an author's
family, or his or their assignees, were prepared to publish cheap
editions immediately after the expiration of the usual period of
protection, they ought to be allowed to do so for a further period of,
say, forty years. If they failed within a reasonable time either to do
so themselves or to arrange for others to do so, this extended period
should lapse.
Were this to be the law nobody could say that it was unfair; but it is
never likely to be the law. It would take time for discussion, and now
there is no time left in which to discuss anything in Parliament. A
much-needed Copyright Bill has been in draft for years, has been
mentioned in Queen's and King's speeches, but it has never been read
even a first time. If it ever is read a first time, its only chance of
becoming law will be if it is taken in a lump, as it stands, without
consideration or amendment. To such a pass has legislation been
reduced in this country!
This draft Bill does not contain any provision for specially
protecting the families of authors whose works long outlive their
mortal lives. It makes no invidious distinctions. It leaves all the
authors to hang together, the quick and the dead. Perhaps this is the
better way.