It is true that there have been in the history of our countr_International copyright

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INTERNATIONAL COPYRIGHT

CONSIDERED IN SOME OF ITS RELATIONS TO

ETHICS AND POLITICAL ECONOMY

GEORGE HAVEN PUTNAM

AN ADDRESS DELIVERED JANUARY 29TH, 1878, BEFORE

THE NEW YORK FREE-TRADE CLUB

NEW YORK

G. P. PUTNAM'S SONS

182 FIFTH AVENUE

1879.

INTERNATIONAL COPYRIGHT.[1]

[1] A paper read January 29th, 1878, before the New York

Free-Trade Club.

The questions relating to copyright belong naturally to the sphere of

political economy. They have to do with the laws governing production,

and with the principles regulating supply and demand; and they are

directly dependent upon a due determining of the proper functions of

legislation, and of the relations which legislation, having for its

end the welfare of the community as a whole, ought to bear towards

production and trade.

As students of economic science, we recognize the fact that, in all

its phases, it is in reality based upon two or three very simple

propositions, such as:

Two plus two make four.

Two from one you can't.

That which a man has created by his own labor is his own, to do what

he will with, subject only to his proportionate contribution to the

cost of carrying on the organization of the community under the

protection of which his labor has been accomplished, and to the single

limitation that the results of his labor shall not be used to the

detriment of his fellow-men.

It is not in the power of legislators to make or to modify the laws of

trade; it is their business to act in accordance with these laws.

Economic science is, then, but the systematizing, on the basis of a

few generally accepted principles, of the relations of men as regards

their labor and the results of their labor, namely, their property.

There is therefore an essential connection between the systems

governing all these relations, however varied they may be. Soundness

of thought in regard to one group of them leads to soundness of

thought about the others.

Interested as we are in the work of bringing the community to a sound

and logical standard of economic faith and practice, it is important

for us to recognize and to emphasize the essential relations

connecting as well the different _scientific_ positions as the various

sets of _fallacious_ assumptions. Further, we can hardly lay too much

stress upon the oft-repeated dictum that a system may be correct in

theory yet pernicious in practice, maintaining, as we do, that where

the application of a theory brings failure the result is due either to

the unsoundness of the theory or to some blundering in its

application.

We claim, also, that with reference to the rights of labor, property,

and capital, the free-trader is the true protectionist. It is the

free-trader who demands for the laborer the fullest, freest use of

the results of his labor, and for the capitalist the widest scope in

the employment of his capital; and it is he who asserts that the

paternal authority which restricts the workingman in the free exchange

of the products of his craft, which limits the directions and the

methods for the use of capital, appropriates--or, to speak more

strictly, destroys--a portion of the value of the labor and the

capital, and prevents the ownership from being real or complete.

Authors are laborers, and their works are, as fully as is the case

with any other class of laborers, the results of their own productive

faculties and energies.

Literary laborers lay claim, therefore, to the same protection for a

full and free enjoyment of the results of their labors as is demanded

by those who work with their hands and who are in the strict sense of

the term manufacturers. Such enjoyment would include the right to sell

their productions in the open market where they pleased and how they

pleased, and if this right to a free exchange is restricted within

political boundaries, is hampered by artificial obstacles, the author

is not the full owner of his material; a portion of its value has been

taken away from him. In so far as international copyrights have not

been established, this is the position of the author of to-day.

exclusive right of the owner to multiply and to dispose of copies of

an intellectual production." It is also used as a synonym for

literary property. Regarding literary property, Drone says:

"There can be no property in a production of the mind unless it

is expressed in a definite form of words. But the property is not

in the words alone; it is in the intellectual creation, which

language is merely a means of expressing and communicating."

brain-work as property.

It is akin in its nature to patent-right, which is also but the legal

recognition of the existence of property in an idea, or a group of

ideas, or the form of expression of an idea.

International _patent_-rights have been recognized and carried into

effect much more generally than have copyrights. The patentee of an

improved toothpick would be able to secure to-day a wider recognition

of his right as a creator than is accorded to the author of "Uncle

Tom's Cabin" or of "Adam Bede."

"The existence of literary property," says Drone, "is traced back by

record to 1558, when an entry of copies appears in the register of the

Company of Stationers of London." Between 1558 and 1710 there was no

legislation creating this property or confining ownership, nor any

abridging its perpetuity or restricting its enjoyment. It was

understood, therefore, to owe its existence to common law, and this

conclusion, arrived at by the weightiest authorities, remained

practically unquestioned until 1774. During this earlier period there

were some instances of the recognition of literary property, but the

earliest reported case concerning such property occurred in 1666, in

which the House of Lords unanimously agreed that "a copyright was a

thing acknowledged at common law." A licensing act, passed in

Parliament in 1674, and expiring in 1679, prohibited, under pain of

forfeiture, the printing of any work without the consent of the owner.

But the first act attempting to fully define and protect copyright in

Great Britain was that of 1710, known as the 8th of Anne. It was

entitled "An Act for the Encouragement of Learning," and, declaring

that an author should have the sole right of publishing his book,

prescribed penalties against any who should infringe that right. Its

evident intention was to more clearly establish, and make more easily

defensible, the rights of authors, but curiously enough it had for its

effect a very material limitation of those rights.

It provided, namely, that copyright should be secured to the author or

his assigns for fourteen years, with a privilege of renewal to the

author or his representatives for fourteen years longer. This

privilege of renewal was not conveyed to any one who might have

purchased the author's copyright. It was supposed for a long time that

this statute had not interfered with any rights that authors might

possess at common law, and in the oft-cited case of Millar _vs._

Taylor in 1769, in regard to a reprint of Thomson's "Seasons," a

majority of the judges of the King's Bench (including among them Lord

Mansfield) gave it as their opinion that the act was _not_ intended to

destroy, and had not destroyed, copyright at common law, but had

simply protected it more efficiently during the periods specified. The

opinion delivered by Lord Mansfield, as chief justice of the court,

remains one of the strongest and most conclusive statements of the

property-rights of authors, and has been termed one of the grandest

judgments in English judicial literature. Its conclusion is as

follows:

"Upon the whole, I conclude that upon every principle of reason,

natural justice, morality, and common law; upon the evidence of

the long received opinion of this property appearing in ancient

proceedings and in law cases; upon the clear sense of the

legislature, and the opinions of the greatest lawyers of their

time since that statute--the right (that is in perpetuity) of an

author to the copy of his work appears to be well founded, ...

and I hope the learned and industrious will be permitted from

henceforth not only to reap the same, but the full profits of

their ingenious labors, without interruptions, to the honor and

advantage of themselves and their families."

In 1774, in the case of Donaldson _vs._ Beckett, the House of Lords

decided on an appeal, first, that authors had possessed at common law

the right of copyright in perpetuity, but, secondly, that this right

at common law had been taken away by the statute of Anne, and a term

of years substituted for perpetuity.

Chief among those who, in opposition to this decision, advised the

lords that literary property was not less inviolable than any species

of property known to the law of England, was Sir William Blackstone.

The most important influence in support of the decision was exercised

by the arguments of Justice Yates and Lord Camden. "This judgment,"

says Drone, "has continued to represent the law; but its soundness has

been questioned by very high authorities." In 1851 Lord Campbell

expressed his agreement with the views of Lord Mansfield. In 1854,

Justice Coleridge said: "If there was one subject more than another

upon which the great and varied learning of Lord Mansfield, his

special familiarity with it, and the philosophical turn of his

intellect, could give his judgment peculiar weight, it was this. I

require no higher authority for a position which seems to me in itself

reasonable and just."

In 1841 an important debate took place in Parliament upon this same

issue. The right at common law of ownership in perpetuity was asserted

by Sergeant Talfourd and Lord Mahon, and the opinion that copyright

was the creation of statute law and should be limited to a term of

years was defended by Macaulay.

The conclusions of the latter were accepted by the House, and the act

of 1842, which is still in force, was the result. By this act the term

of copyright was fixed at forty-two years, or if at the end of that

time the author be still living, for the duration of his life.

I have referred to these discussions as to the nature of the

authority through which the author's ownership exists or is created,

as the question will be found to have an important bearing upon

international copyright. In connection with this debate of 1842 was

framed the famous petition of Thomas Hood, which, if it were not

presented to Parliament, certainly deserved to be. It makes a fair

presentment of the author's case, and is worth quoting:

"That your petitioner is the proprietor of certain copyrights

which the law treats as copyhold, but which in justice and

equity, should be his freeholds. He cannot conceive how 'Hood's

Own,' without a change in the title-deeds as well as the title,

can become 'Everybody's Own' hereafter.

"That your petitioner may burn or publish his manuscripts at his

own option, and enjoys a right in and control over his own

productions which no press, now or hereafter, can justly press

out of him.

"That as a landed proprietor does not lose his right to his

estate in perpetuity by throwing open his grounds for the

convenience and gratification of the public, neither ought the

property of an author in his works to be taken from him, unless

all parks become commons.

"That your petitioner, having sundry snug little estates in view,

would not object, after a term, to contribute his private share

to a general scramble, provided the landed and moneyed interests,

as well as the literary interest, were thrown into the heap; but

that in the mean time, the fruits of his brain ought no more to

be cast amongst the public than a Christian woman's apples or a

Jewess' oranges.

"That cheap bread is as desirable and necessary as cheap books;

but it hath not yet been thought just or expedient to ordain

that, after a certain number of crops, all corn-fields shall

become public property.

"That, whereas in other cases long possession is held to affirm a

right to property, it is inconsistent and unjust that a mere

lapse of twenty-eight or any other term of years should deprive

an author at once of principal and interest in his own literary

fund. To be robbed by Time is a sorry encouragement to write for

Futurity!

"That a work which endures for many years must be of a sterling

character, and ought to become national property; but at the

expense of the public, or at any expense save that of the author

or his descendants. It must be an ungrateful generation that, in

its love of 'cheap copies,' can lose all regard for 'the dear

originals.'

"That, whereas, your petitioner has sold sundry of his copyrights

to certain publishers for a sum of money, he does not see how the

public, which is only a larger firm, can justly acquire even a

share in copyright, except by similar means--namely, by purchase

or assignment. That the public having constituted itself by law

the executor and legatee of the author, ought in justice, and

according to practice in other cases, to take to his debts as

well as his literary assets.

"That when your petitioner shall be dead and buried, he might

with as much propriety and decency have his body snatched as his

literary remains.

"That, by the present law, the wisest, virtuousest, discreetest,

best of authors, is tardily rewarded, precisely as a vicious,

seditious, or blasphemous writer is summarily punished--namely,

by the forfeiture of his copyright.

"That, in case of infringement on his copyright, your petitioner

cannot conscientiously or comfortably apply for redress to the

law whilst it sanctions universal piracy hereafter.

"That your petitioner hath two children, who look up to him, not

only as the author of the 'Comic Annual,' but as the author of

their being. That the effect of the law as regards an author is

virtually to disinherit his next of kin, and cut him off with a

book instead of a shilling.

"That your petitioner is very willing to write for posterity on

the lowest terms, and would not object to the long credit; but

that, when his heir shall apply for payment to posterity, he will

be referred back to antiquity.

"That, as a man's hairs belong to his head, so his head should

belong to his heirs; whereas, on the contrary, your petitioner

hath ascertained, by a nice calculation, that one of his

principal copyrights will expire on the same day that his only

son should come of age. The very law of nature protests against

an unnatural law which compels an author to write for anybody's

posterity except his own.

"Finally, whereas it has been urged, 'if an author writes for

posterity, let him look to posterity for his reward,' your

petitioner adopts that very argument, and on its very principle

prays for the adoption of the bill introduced by Mr. Sergeant

Talfourd, seeing that by the present arrangement posterity is

bound to pay everybody or anybody but the true creditor."

In France perpetual copyright was guaranteed from very early times.

The Ordinances of Moulines of 1556, the Declaration of Charles IX. in

1571, and the letters-patent of Henry III. constituted the ancient

legislation on the subject, but the sovereign had a right to refuse

the guarantee whenever he thought desirable. In 1761 the Council of

State continued to a grandson of La Fontaine the privilege that his

grandfather possessed, on condition, however, that he should not

assign it to a bookseller. The Revolution of 1789 modified this

regime, and now copyright is guaranteed to authors and their widows

during their lives, to their children, for twenty years; and if they

leave no children, to their heirs for ten years only. According to

French law, a French subject does not injure his copyright by

publishing his work first in a foreign country. No matter where the

publication takes place, copyright forthwith accrues in France on his

behalf, and on the necessary deposit being effected, its infringement

may be proceeded against in a French court. Moreover, a foreigner

publishing in France will enjoy the same copyright as a native, and

this whether he has previously published in his own or in any other

country or not. In Germany and in Austria copyright continues for the

authors life and for thirty years after his death. The longest term of

author and forty years, with a second term of forty years, during

which last any one can publish the work upon paying the royalty to the

author or his assigns. The shortest term of copyright exists in

Greece, where it endures for but fifteen years from publication.

In the United States, by the law of 1831, the term is for twenty-eight

years, with the right of renewal to the author, his wife or his

children, for fourteen years further. The renewal must be recorded

within six months before the expiration of the first term of

twenty-eight years.

Drone says:

"In the United States the authorities have been divided not less

than in England regarding the origin and nature of literary

property. Indeed, the doctrines there prevalent have ruled our

courts. In 1834, in the case of Wheaton _vs._ Peters, the same

question came before the Supreme Court, that had been decided by

the Court of King's Bench in 1769, and by the House of Lords in

1774--namely, whether copyright in a published work existed by

common law; and if so, whether it had been taken away by statute.

"The court held that the law had been settled in England to the

effect that the author had no right in a published work excepting

that secured by statute; that there was no common law of the

United States, and that the common law as to copyright had not

been adopted in Pennsylvania, in which State the cause of this

action arose; and that by the copyright statute of 1790, Congress

did not affirm an existing right, but created one. The opinion,

which was delivered by Justice McLean, was concurred in by three

of the judges, and dissented from by two, Justices Thompson and

Baldwin, who defended the positions and recalled the arguments of

Lord Mansfield and Sir William Blackstone. Justice Baldwin said:

'Protection is the avowed and real purpose of the act of 1790.

There is nothing here admitting the construction that a new right

is created ... It is a forced and unreasonable interpretation to

consider it as restricting or abolishing any pre-existing

right!'"

Previous to the act of Congress of 1790, acts securing copyright to

authors for limited terms had been passed in Connecticut and

Massachusetts in 1783, in Virginia in 1785, in New York in 1786, and

in other States at later dates. The statute of 1790 gave copyright for

fourteen years, with a renewal to the author, if living, of fourteen

years further. In 1831 was passed the act of already quoted, and in

1870 the regulation went into effect that a printed title of the work

copyrighted must be filed with the Librarian of Congress before

publication, and two copies of the complete book be delivered within

ten days after publication.

In 1874 it was provided that the form of the copyright notice in books

should read, "Copyright, 18--, by A. B."

The first step towards a recognition of the rights of foreign authors

was taken in 1836 by Prussia, when she prohibited the sale within her

boundaries of any pirated or counterfeited editions of German works.

In 1837 a Copyright Convention was concluded between the different

members of the German Confederation. In 1838 the British Parliament

passed a law to obtain for authors the benefits of international

in 1851 with France and Hanover, in 1854 with Belgium, and between

1854 and 1860 with Holland, Italy, Switzerland, and Spain. Between

1846 and 1861 similar conventions were entered into by France with

Belgium, Germany, Holland, Switzerland, and Italy, and nearly all the

Continental powers have now copyright arrangements with each other. As

far as I have been able to learn, it is not requisite under these

arrangements to have a book separately entered for copyright in each

country. The single entry in the place of first publication is

sufficient to protect the author, and to leave him free to make,

within a specified time, his own arrangements with foreign publishers.

In the general copyright statutes, Parliament made no express

distinction between native and foreign authors. The copyright was

granted "to authors," without any restriction as to nationality. It

has been contended, therefore, by jurists on the one hand that the

privilege must be presumed to have been intended for British subjects

exclusively, and on the other that it of necessity belonged to all

authors, whether native or foreign.

There were, previous to 1854, several conflicting decisions of the

courts on this question. In that year the House of Lords decided, in

the case of Jeffreys _v._ Boosey, that a foreign author, resident

abroad, was not entitled to English copyright.

In 1868 the House of Lords, in the case of Routledge _v._ Low, with

reference to the rights of an American author who was residing in

Canada at the time of the publication of his book in London, declared

that an alien became entitled to English copyright by first publishing

in the United Kingdom, provided he were, at the time of publication,

anywhere within the British dominions. Drone says that "this judgment

has continued to represent the law."

It is certainly the case that for a few years after 1868, as a

consequence of this decision, several American authors whose books

were being published in London, took up a temporary residence in

Canada, which enabled their London publishers to enter the books for

I am not able to quote any decisions that have set aside or modified

the above, but I have been advised by leading London publishers that

the effect of this judgment has in some way been nullified, and that

"Canada copyrights" can no longer be depended upon for protecting

American authors in England.

In the United States copyright can at present be secured only by a

citizen or permanent resident, and there is no regulation to prevent

the use, without remuneration, of the literary property of foreign

authors. The United States is therefore at present the only country

itself possessing a literature of importance, and making a large use

of the literature of the world, which has done nothing to recognize

and protect by law the rights of foreign authors of whose property it

is enjoying the benefit, or to obtain a similar recognition and

protection for its own authors abroad.

It has looked after the rights of the makers of its sewing-machines,

its telephones, and its mouse-traps, but it appears to have entirely

forgotten the makers of its literature. The position taken by our

government in securing for an American author the benefit of the sale

of his works at home, while practically estopping him from obtaining

any advantage from their sales abroad, is somewhat analogous to its

treatment of American ship-owners, who are allowed to pick up all the

freights that offer inland and along the coast, but are forbidden to

earn a single penny on the high seas.

It is not easy to understand the cause of this continued indifference

to the claims of our literary workmen; they do not come into

competition with the Delaware River or with any manufacturing

interests for _subsidies_; they ask simply for _markets_.

It is true that there have been in the history of our country

governments which seemed impatient of the claims of any "literary

fellers;" but the majority of our administrations have shown a fair

respect for such "fellers," and even a readiness to make use of their

services.

The difficulty has really been, however, not with the administrations,

but with the people at large, who have failed to fairly educate

themselves on the subject, or to recognize that an international

but as a matter of simple justice to American authors.

These have suffered, and are suffering from the present state of

things in two ways. In the first place, they lose the royalty on the

sales of their books in Europe, Canada, Australia, etc., that ought to

be secured to them by treaties of copyright reciprocity. These sales

have become, with the growth of American literature, very

considerable, and are each year increasing in importance. Even a

quarter of a century ago there were enough American books whose fame

was world-wide to have rendered a very moderate royalty on their sales

a matter of great importance to their authors and to the community.

"Uncle Tom's Cabin," Irving's "Sketch-Book" and other volumes,

Thompson's "Land and the Book," Warner's "Wide, Wide World," Webster's

Dictionary, James' "Two Years before the Mast," and Peter Parley's

histories are a few random specimens from the earlier list, which is a

great deal longer than might at first be thought.

In an official report of the 25th Congress it was stated that up to

1838 not less than 600 American works had been reprinted in England.

According to the "American Facts" of G.P. Putnam, 382 American books,

acknowledged to be such, were reprinted in Great Britain between 1833

and 1843, while a large amount of American literary material had been

"adapted," or issued under new titles as if they had been original

British works. Among these last he quotes Judge Story's "Law of

Bailments," Everett's "Greek Grammar," Bancroft's Translation of

Heeren's Histories, Dr. Harris' "Natural History," etc., etc.

Secondly, the want of an international copyright has placed American

authors at a disadvantage because it has checked the sales of their

wares at home. Other things being equal, the publisher will, like any

other trader, manufacture such goods as will give him the largest

profit, and as he can sell the most readily.

If he has before him an American novel on which, if he prints it, he

must pay the author a royalty, and an English novel of apparently

equal merit, on which he is not called upon by law to pay anything,

the commercial inducement is on the side of the latter. If, on the

score of patriotism or for some other reason, he may decide in favor

of the former, his neighbor or rival will take the English work, and

will have advantages for underselling him. As a matter of fact, as I

shall specify further on, it is the custom of the leading publishing

houses to make some payment for the English material that they

reprint, but as they secure no legal title to such material, they

cannot, as a rule, pay as much for it as they would for similar

American work. There is also the advantage connected with English

works that they usually come to the American publisher in type, in

convenient form for a rapid examination, and that he can often obtain

some English opinions about them which help him to make up his own

publishing judgment, and are of very material assistance in securing

for the books the favorable attention of the American public. It has

therefore been the case that an American work of fiction has had to be

a good deal better than a similar English work, and more marked in its

attractiveness in order to have anything like the same chance of

success. And what is the case with fiction, is true, though to a less

degree, with books for young folks and works in other departments of

literature. It is to be said, however, that this difference in favor

of English productions has been very much greater in past years than

at present, and is, I think, steadily decreasing.

American writers have, against all disadvantages, forced their books

to the favorable attention, not only of the American but of the

foreign public, and the best work is now fairly secure of a hearing.

But there is no question but what the want of a copyright measure has,

as above explained, operated during the past three quarters of a

century to retard and discourage the growth of American literature,

especially of American fiction, and to prevent American authors from

receiving a fair return for their labor. An international copyright is

the first step towards that long-waited-for "great American novel."

In 1876 a Commission was appointed by the Government of Great Britain

"to make inquiry in regard to the laws and regulations relating to

home, colonial, and international copyright." The Commission was made

fairly representative of the different interests to be considered,

comprising among authors: Earl Stanhope, Louis Mallet, Fitzjames

Stephen, Edward Jenkins, William Smith, Sir Henry Holland, James

Anthony Froude, and Anthony Trollope, and also Sir Julius Benedict for

the composers, Sir Charles Young for the dramatists, Sir John Rose and

Mr. Farrer for colonial interests, and Mr. F. R. Daldy for the

publishers; and it has done its work in the thorough, painstaking way

which is characteristic of the methods of British legislation.

It has collected during the past two years a vast mass of testimony

from various sources, and after full consideration has arrived at a

series of recommendations which it has presented to Parliament, and

which will in all probability be adopted.

It is recommended that the copyright on books, instead of holding for

forty-two years from date of registration, shall endure for the

lifetime of the author and for thirty years thereafter. This is the

arrangement at present existing in Germany, and it has the important

advantage that under it all the copyrights of an author will expire at

the same date.

The Commission further recommends (and this is the recommendation most

important for our subject) that the right of copyright throughout the

British dominions be extended to any author, wherever resident and of

whatever nationality, whose work may first be published within the

British Empire.

With reference to the present relations of British authors with this

country, it uses the following words: "It has been suggested to us

that this country would be justified in taking steps of a retaliatory

character, with a view of enforcing, incidentally, that protection

from the United States which we accord to them. This might be done by

withdrawing from the Americans the privilege of copyright on first

publication in this country. We have, however, come to the conclusion

that, on the highest public grounds of policy and expediency, it is

advisable that our law should be based on correct principles,

irrespectively of the opinions or the policy of other nations. We

admit the propriety of protecting copyright, and it appears to us that

the principle of copyright, if admitted, is of universal application.

We therefore recommend that this country should pursue the policy of

recognizing the author's rights, irrespective of nationality."

Here is a claim for a far-seeing, statesmanlike policy, based upon

principles of wide equity, and planned for the permanent advantage of

literature in England and throughout the world. Contrast with this the

narrow and local views of the following resolutions adopted at a

meeting held in Philadelphia in January, 1872, with reference to

international copyright, at which, if I remember rightly, Mr. Henry

Carey Baird presided;

"I. That thought, unless expressed, is the property of the thinker" (a

pretty safe proposition, as, _until_ expressed, it could hardly incur

any serious risk of being appropriated); "when given to the world, it

is as light, free to all.

"II. As property it can only demand the protection of the municipal

law of the country to which the thinker is subject."

The property which would, if it still existed, most nearly approximate

to such a definition as this is that in _slaves_. Twenty years ago, an

African chattel who was worth $1000 in Charleston became, on slipping

across to the Bermudas, as a piece of property valueless. He had no

longer a market price.

It is this ephemeral kind of ownership, limited by accidental

political boundaries, that our Philadelphia friends are willing to

concede to the work of a man's mind, the productions into which have

been absorbed the grey matter of his brain and perhaps the best part

of his life.

"III. The author of any country, by becoming a citizen of this, and

assuming and performing the duties thereof, can have the same

protection that an American author has."

We have already shown what an exceedingly unprotective and

unremunerative arrangement it is that is accorded to the American

author, and we have yet to find a single one, except perhaps Mr.

Carey, who is satisfied with it.

Why a European author, who has before him, under international

conventions, the markets of his native country and of all the world,

excepting belated America, should be expected to give up these for the

poor half-loaf of protection accorded to his American brother we can

hardly understand.

"IV. The trading of privileges to foreign authors for privileges to be

granted to Americans is not just, because the interests of others than

themselves are sacrificed thereby."

That strikes one as a remarkable sentence to come from Philadelphia.

Here are a number of American manufacturers who ask for a certain very

moderate amount of protection for their productions, and our

Philadelphia friends, filled with an unwonted zeal for the welfare of

the community at large, say, "No; this won't do. Prices would be

higher, and _consumers_ would suffer."

It is evident that this want of practical sympathy with these literary

manufacturers is not due to any lack of interest in the enlightenment

of the community, for the last article says:

"V. Because the good of the whole people and the safety of our

republican institutions demand that books shall not be made too costly

for the multitude by giving the power to foreign authors to fix their

price here as well as abroad."

I think we may well doubt whether education as a whole, including the

important branch of ethics, is advanced by permitting our citizens to

appropriate, without compensation, the labor of others, while through

such appropriation they are also assisting to deprive our own authors

of a portion of their rightful earnings. But apart from that, the

proposition, as stated, proves too much. It is fatal to all copyright

and to all patent-right. If the good of the community and the safety

of our institutions demand that, in order to make books cheap, the

claim to a compensation for the authors must be denied, why should we

continue to pay copyrights to Longfellow and Whittier, or to the

families of Irving and Bryant? The so-called owners of these

copyrights actually have it in their power, in connection with their

publishers, to "fix the prices" of their books in this market. This

monopoly must indeed be pernicious and dangerous when it arouses

Pennsylvania to come to the rescue of oppressed and impoverished

consumers against the exactions of greedy producers, and to raise the

cry of "free books for free men."

There is certainly something refreshing in this zeal for the rights of

the consumer, though we may doubt the equity of its application in

this particular instance; but we can nevertheless hardly be satisfied

to have an utterance like that of these resolutions quoted (as it is

in the last edition of the Encyclopaedia Britannica) as "the latest

American views on the subject."

The history of the efforts made in this country to secure

international copyright is not a long one. The attempts have been few,

and have been lacking in organization and in unanimity of opinion, and

they have for the most part been made with but little apparent

expectation of any immediate success. Those interested seem to have

always felt that popular opinion was, on the whole, against them, and

that progress could be hoped for only through the slow process of

building up by education and discussion a more enlightened public

sentiment.

In 1838, after the passing of the first International Copyright Act

in Great Britain, Lord Palmerston invited the American Government to

cooeperate in establishing a copyright convention between the two

countries.

In the year previous, Henry Clay, as chairman of a committee on the

subject, had reported to the Senate very strongly in favor of such a

convention, taking the ground that the author's right of property in

his work was similar to that of the inventor in his patent.

This is a logical position for a protectionist, interested in the

rights of labor, to have taken, and the followers of Henry Clay, who

are to-day opposed to any measure of the kind, would do well to bear

in mind this opinion of their ablest leader.

No action was taken in regard to Mr. Clay's report or Lord

Palmerston's proposal.

In 1840 Mr. G. P. Putnam issued in pamphlet form "An Argument in

behalf of International Copyright," the first publication on the

subject in the United States of which I find record. In 1843 Mr.

Putnam obtained the signatures of ninety-seven publishers, printers,

and binders to a petition he had prepared, and which was duly

presented to Congress. It took the broad ground that the absence of an

international copyright was "alike injurious to the business of

publishing and to the best interests of the people at large."

A memorial was presented the same year in opposition to this petition,

setting forth, among other things, that an international copyright

would "prevent the adaptation of English books to American wants." In

the report made by Mr. Baldwin to Congress twenty-five years later, he

remarks that "the mutilation and reconstruction of American books to

suit English wants are common to a shameless extent."

In 1853 the question of a copyright convention with Great Britain was

again under discussion, the measure being favored by Mr. Everett, at

that time Secretary of State. Five of the leading publishing houses in

New York addressed a letter to Mr. Everett in which, while favoring a

convention, they advised--

1st. That the foreign author must be required to register the title of

his work in the United States before its publication abroad.

2d. That the work, to secure protection, must be issued in the United

States within thirty days of its publication abroad; and

3d. That the reprint must be wholly manufactured in the United States.

Shortly afterwards Mr. Carey published his "Letters on International

book are the common property of society, and that property in

House of Representatives by Mr. Morris, of Pennsylvania, providing for

international copyright on the basis of an entire remanufacture of the

foreign work and its reissue by an American publisher within thirty

days of the publication abroad. The bill does not appear to have

received any consideration.

In March, 1868, a circular letter headed "Justice to Authors and

Artists," was issued by a Committee composed of G. P. Putnam, Dr. S.

I. Prime, Henry Ivison, James Parton, and Egbert Hazard, calling

together a meeting for the consideration of the subject of

international copyright. The meeting was held on the 9th of April, Mr.

Bryant presiding, and a society was organized under the title of the

"Copyright Association for the Protection and Advancement of

Literature and Art," of which Mr. Bryant was made president and E. C.

Stedman secretary. The primary object of the Association was stated to

be "to promote the enactment of a just and suitable international

the world."

A memorial had been prepared by the above-mentioned Committee to be

presented to Congress, which requested Congress to give its early

attention to the passage of a bill "to secure in all parts of the

world the rights of authors," etc., but which made no recommendations

as to the details of any measure. Of the 153 signatures attached to

this memorial, 101 were those of authors, and 19 of publishers.

In the fall of 1868 Mr. J. D. Baldwin, member of Congress from

Worcester, Mass., reported a bill that had been prepared with the

co-operation of the Executive Committee of the Copyright Association,

which provided, That a foreign work could secure a copyright in this

country provided it was wholly manufactured here and should be issued

for sale by a publisher who was an American citizen. The benefit of

the copyright was also limited to the author and his assigns.

The bill was recommitted to the Joint Committee on the Library, and no

action was taken upon it. The members of this Committee were Senators

E. D. Morgan, of New York, Howe, of Wisconsin, and Fessenden, of

Maine, who were opposed to the measure, and Representatives Baldwin,

of Massachusetts, Pruyn, of New York, and Spalding, of Ohio, who were

in favor of it. The bill was also to have been supported in the House

by Michael C. Kerr, of Indiana. Mr. Baldwin explains that an important

cause for the shelving of the measure without debate was the

impeachment of President Johnson, which was at that time absorbing the

attention of Congress and the country. No general expression of

opinion was therefore elicited upon the question from either Congress

or the people, and in fact the question has never reached such a stage

as to enable such an expression of public opinion to be arrived at.

It is my own belief that if the issue were fairly presented to them,

the American people could be trusted to decide it honestly and wisely.

The active members of the committee of the Copyright Association,

under whose general suggestions this bill of Mr. Baldwin's had been

framed, were Dr. S. Irenaeus Prime, George P. Putnam, and James Parton.

Dr. Prime published in _Putnam's Magazine_ in May, 1868, a paper on

the "Right of Copyright," which remains perhaps the most concise and

comprehensive statement of the principles governing the question, and

which sets forth very clearly the necessary connection between Carey's

denial of the right of property in books and Proudhon's claim that all

property is robbery. In 1871 Mr. Cox of New York introduced a bill

which was practically identical with Mr. Baldwin's measure, and which

was also recommitted to the Library Committee. In 1872 the new Library

Committee called upon the publishers and others interested to aid in

framing a bill.

A meeting of the publishers was called in New York, which was attended

by but one firm outside of New York; the majority of the firms present

were in favor of the provisions of Mr. Cox's bill, already referred

to. The report was dissented from by a large minority on the ground

that the bill was in the interests of the publishers rather than that

of the public; that the prohibition of the use of foreign stereotypes

and electrotypes of illustrations was an economic absurdity; and that

an English publishing house could in any case, through an American

partner, retain control of the American market. The report of the

minority was prepared by Mr. Edward Seymour, of Scribner, Armstrong &

Co. During the same week a bill was drafted by Mr. C. A. Bristed,

representing more especially the views of the authors in the

International Copyright Association, which provided simply that "all

rights of property secured to citizens of the United States by

existing copyright laws are hereby secured to the citizens and

subjects of every country the government of which secures reciprocal

rights to the citizens of the United States." The same result as that

aimed at in Mr. Bristed's bill would have been obtained by the

adoption of the recommendation made by Mr. J. A. Morgan in his work on

"The Law of Literature," published in 1876. He suggested that the

present copyright law be amended by simply inserting the word "person"

in place of "citizen," in which case its privileges would at once be

secured to any authors, of whatever nationality, who complied with its

requirements.

A few weeks later the meeting was held in Philadelphia whose

resolutions in opposition to international copyright (which, as we

have shown, were equally forcible against any copyright) we have

already quoted.

These four reports were submitted to the Library Committee of

Congress, together with one or two individual measures, of which the

most noteworthy were those of Harper & Bros., and of John P. Morton,

bookseller, of Louisville.

Messrs. Harper, in a letter presented by their counsel, objected to

any measure of international copyright on the broad ground that it

would "add to the price of books and interfere with the education of

the people." This consideration is of course open to the same

criticism as the Philadelphia platform; it is equally forcible against

any copyright whatever. As Thomas Hood says, "cheap _bread_ is as

desirable and necessary as cheap books," but one does not on that

ground appropriate the farmer's wheat-stacks!

Mr. Morton was in favor of an arrangement that should give to any

dealer the privilege of reprinting a foreign work, provided he would

contract to pay to the author or his representative 10 per cent of the

wholesale price of such work. He advised also that the American market

should be left open to the foreign edition, so that the competition

should be perfectly unrestricted.

The proposition that all dealers who would contract to pay to the

author a royalty (to be fixed by law) should be at liberty to

undertake the publication of a work was at a later date presented to

the British Commission by Mr. Farrer and Sir Henry Holland, first with

reference to home copyright, and secondly as a suggestion for an

international arrangement. In this last shape the writer had the

opportunity, in 1876, of presenting to the Commission some

considerations against it. These will be referred to further on.

A similar suggestion formed the basis of a measure submitted in 1872

by Mr. Elderkin, of New York, to the Library Committee of Congress,

and known afterwards as the Sherman Bill.

In view of the wide diversity of the plans and suggestions presented

to this Committee, there was certainly some ground for the statement

made in his report by the chairman, Senator Lot M. Morrill, of Maine,

that "there was no unanimity of opinion among those interested in the

measure." He maintained, further, that an international copyright was

not called for by reasons of general equity or of constitutional law;

that the adoption of any plan which had been proposed would be of very

doubtful advantage to American authors, and would not only be an

unquestionable and permanent injury to the interests engaged in the

manufacture of books, but a hindrance to the diffusion of knowledge

among the people, and to the cause of American education.

This report closed for the time the consideration of the subject.

The efforts in behalf of international copyright have been always more

or less hampered by the question being confused with that of a

protective tariff.

The strongest opposition to a copyright measure has as a rule come

from the protectionists. Richard Grant White said in 1868: "The

refusal of copyright in the United States to British authors is in

fact, though it is not so avowed, a part of the 'American' protective

system." And again: "With free trade we shall have just international