grounds for their position. American authors are manufacturers, who are
simply asking, first, that they shall not be undersold in their home
market by goods imported from abroad on which no (ownership) duty has
been paid,--which have, namely, been simply "appropriated;" and
secondly, that the government may facilitate their efforts to secure a
sale for their own goods in foreign markets. These are claims with
which a protectionist who is interested in developing American industry
ought certainly to be in sympathy.
The contingency that troubles him, however, is the possibility that,
if the English author is given the right to sell his books in this
country the copies sold may be to a greater or less extent
manufactured in England, and the business of making these copies may
be lost to American printers, binders, and paper men. He is namely,
much more concerned for the protection of the makers of the _material
casing_ of the book than for that of the author who creates its
essential substance.
It is evidently to the advantage of the consumer, upon whose interests
the Philadelphia resolutions laid so much stress, that the labor of
preparing the editions of his books be economized as much as possible.
The principal portion of the cost of a first edition of a book is the
setting of the type, or, if the work is illustrated, in the setting of
the type and the designing and engraving of the illustrations.
If this first cost of stereotyping and engraving can be divided among
several editions, say one for Great Britain, one for the United
States, and one for Canada and the other colonies, it is evident that
the proportion to be charged to each copy printed is less, and that
the selling price per copy can be smaller, than would be the case if
this first cost has got to be repeated in full for each market.
It is then to the advantage of the consumer that, whatever copyright
arrangement be made, nothing shall stand in the way of foreign
stereotypes and illustrations being duplicated for use here whenever
the foreign edition is in such shape as to render this duplicating an
advantage and a saving in cost.
The few protectionists who have expressed themselves in favor of an
international copyright measure, and some others who have fears as to
our publishing interests being able to hold their own against any open
competition, insist upon the condition that foreign works to obtain
copyright must be wholly remanufactured and republished in this
country.
We have shown how such a condition would, in the majority of cases, be
contrary to the interests of the American consumer, while the British
author is naturally opposed to it because, in increasing materially
the outlay to be incurred by the American publisher in the production
of his edition, it proportionately diminishes the profits or prospects
of profits from which is calculated the remuneration that can be paid
to the author.
The measure of permitting the foreign book to be reprinted by all
dealers who would contract to pay the author a specified royalty has
at first sight something specious and plausible about it. It seems to
be in harmony with the principles of freedom of trade, in which we are
believers. It is, however, directly opposed to those principles;
first, it impairs the freedom of contract, preventing the producer
from making such arrangements for supplying the public as seem best to
him; and secondly, it undertakes, by paternal legislation, to fix the
remuneration that shall be given to the producer for his work, and to
limit the prices at which this work shall be furnished to the
consumer. There is no more equity in the government's undertaking this
limitation of the producer and protection of the consumer in the case
of _books_ than there would be in that of bread or of beef.
Further, such an arrangement would be of benefit to neither the
author, the public, nor the publishers, and would, we believe, make of
international copyright, and of any copyright, a confusing and futile
absurdity.
A British author could hardly obtain much satisfaction from an
arrangement which, while preventing him from having his American
business in the hands of a publishing house selected by himself, and
of whose responsibility he could assure himself, threw open the use of
his property to any dealers who might choose to scramble for it. He
could exercise no control over the style, the shape, or the accuracy
of his American editions; could have no trustworthy information as to
the number of copies the various editions contained; and if he were
tenacious as to the collection of the royalties to which he was
entitled, he would be able in many cases to enforce his claims only
through innumerable lawsuits, and he would find the expenses of the
collection exceed the receipts.
The benefit to the public would be no more apparent. Any gain in the
cheapness of the editions produced would be more than offset by their
unsatisfactoriness: they would, in the majority of cases, be
untrustworthy as to accuracy or completeness, and be hastily and
flimsily manufactured. A great many enterprises, also, desirable in
themselves, and that would be of service to the public, no publisher
could, under such an arrangement, afford to undertake at all, as, if
they proved successful, unscrupulous neighbors would, through rival
editions, reap the benefit of his judgment and his advertising. In
fact, the business of reprinting would fall largely into the hands of
irresponsible parties, from whom no copyright could be collected.
The arguments against a measure of this kind are, in short, the
arguments in favor of international copyright. A very conclusive
statement of the case against the equity or desirability from any
point of view of such an arrangement in regard to home copyright was
made before the British Commission, in 1877, by Herbert Spencer. His
testimony is given in full in the _Popular Science Monthly_ for
November, 1878, and February, 1879.
The recommendation had been made that, for the sake of securing cheap
books for the people, the law should give to all dealers the privilege
of printing an author's books, and should fix a copyright to be paid
to the author that should secure him a "fair profit for his work." Mr.
Spencer objected that--
First. This would be a direct interference with the laws of trade,
under which the author had the right to make his own bargains. Second.
No legislature was competent to determine what was "a fair rate of
profit" for an author. Third. No average royalty could be determined
which could give a fair recompense for the different amounts and kinds
of labor given to the production of different classes of books.
Fourth. If the legislature has the right to fix the profits of the
author, it has an equal right to determine that of his associate in
the publication, the publisher; and if of the publisher, then also of
the printer, binder, and paper-maker, who all have an interest in the
undertaking. Such a right of control would apply with equal force to
manufacturers of other articles of importance to the community, and
would not be in accordance with the present theories of the proper
functions of government. Fifth. If books are to be cheapened by such a
measure, it must be at the expense of some portion of the profits now
going to the authors and publishers; the assumption is that book
producers and distributors do not understand their business, but
require to be instructed by the state how to carry it on, and that the
publishing business alone needs to have its returns regulated by law.
Sixth. The prices of the best books would in many cases, instead of
being lessened, be higher than at present, because the publishers
would require some insurance against the risk of rival editions, and
because they would make their first editions smaller, and the first
cost would have to be divided among a less number of copies. Such
reductions of prices as would be made would be on the flimsier and
more popular literature, and even on this could not be lasting.
Seventh. For the enterprises of the most lasting importance to the
public, requiring considerable investment of time and capital, the
publishers require to be assured of returns from the largest market
possible, and without such security enterprises of this character
could not be undertaken at all. Eighth. Open competition of this kind
would, in the end, result in crushing out the smaller publishers, and
in concentrating the business in the hands of a few houses whose
purses had been long enough to carry them through the long and
unprofitable contests that would certainly be the first effect of such
legislation.
All the considerations adduced by Mr. Spencer have, of course, equal
force with reference to open international publishing, while they may
also be included among the arguments in behalf of international
copyright.
With these views of a veteran writer of books may very properly be
associated the opinions of the experienced publisher, Mr. Wm. H.
Appleton, who, in a letter to the New York _Times_ in 1872, says:
"The first demand of property is for security.... To publish a book in
any real sense--that is, not merely to print it, but to make it well
and widely known--requires much effort and large expenditure, and
these will not be invested in a property which is liable to be
destroyed at any moment. Legal protection would thus put an end to
evil practices, make property secure, business more legitimate, and
give a new vigor to enterprise. Nor can a policy which is unjust to
the author, and works viciously in the trade, be the best for the
public. The publisher can neither afford to make the book so
thoroughly known, nor can he put it at so low a price, as if he could
count upon permanent and undisturbed possession of it. Many valuable
books are not reprinted at all, and therefere are only to be had at
English prices, for the same reason that publishers are cautious about
risking their capital in unprotected property."
The copy-book motto, "Honesty is the best policy," fails often enough
to come true (at least as to material results) in the case of the
individual, simply because his life is not always long enough to give
an opportunity for all the results of his actions to be arrived at.
The community, however, in its longer life, is subject to the full
influence of the certain though sometimes slow-working relations of
cause to effect, relations which, among other things, bring out the
essential connection between economics and ethics, and which show in
the long-run the just method to be the wise method. An enlightened
self-interest finds out the advantage of equity. If the teaching of
history makes anything evident, it is that in the transactions of a
nation, honesty _pays_, even in the narrowest and most selfish sense
of the term, and nothing but honesty can ever pay. Among the many
classes of interests to which this applies international copyright
certainly belongs.
Rejecting the Elderkin-Sherman suggestion of an open market for
republishing as in no way effecting the objects desired; the
Baldwin-Cox plan of giving protection only to books of which the type
had been set and the printing done in this country, as narrow in
principle and uneconomic in practice; and the Bristed-Morgan
proposition to extend the right of copyright without limitation or
restriction, as not giving sufficient consideration to the business
requirements, and as at present impracticable to carry into effect--we
would recommend a measure based upon the suggestion of the British
Commission, coupled with one or two of the provisions that have been
included in the several American schemes:
1. That the title of the foreign work be registered in the United
States simultaneously with its publication abroad.
2. That the work be republished in the United States within six months
of its publication abroad.
3. That for a limited term, say ten years, the stipulation should be
made that the republishing be done by an American citizen.
4. That for the same term of years the copyright protection be given
to those books only that have been printed and bound in this country,
the privilege being accorded of importing foreign stereotypes and
electrotypes of cuts.
5. That, subject to these provisions, the foreign author or his
assigns shall be accorded the same privileges now conceded to an
American author.
I believe that, in the course of time, the general laws of trade would
and ought to so regulate the arrangements for supplying the American
public with books that, if there were no restriction as to the
nationality of the publisher or as to the importation of printed
volumes, the author would select the publishing agent, English or
American, who could serve him to best advantage; and that that agent
would be found to be the man who would prepare for the largest
possible circle of American readers the editions best suited to their
wants.
The foreign author would before long recognize that it was to his
interest to be represented by the publisher who understood the market
most thoroughly and who had the best facilities for supplying it. If
English publishers, settling here, could excel our American houses in
this understanding and in these facilities, they ought to be at
liberty to do so, and it would be for the interest of the public that
no hindrances should be placed in their way.
The experience of our American houses, however, who have had business
with English authors and publishers is that it takes some little time
for them to obtain a clear perception of the requirements of the
American market and of American readers, and of the very material
differences existing between the status here and in Great Britain. And
it would be my fear that, if the copyright were granted at once
without restriction, there would be an interregnum of some years,
during which these authors and publishers were obtaining their
American education, before the American readers could obtain freely
the books they wanted in the editions they were willing to purchase.
Our friends on the other side could not resist the temptation of
experimenting, before providing what was really wanted, as to how long
our market would stand their expensive $7, $5, and $3 editions of
books that we have been accustomed to buy here for $2.50, $2, and $1;
and as a consequence, they would sell books by dozens or hundreds that
ought to be sold by thousands; their authors would receive an
inconsiderable copyright, and the American public would be badly
served and would become indignant.
But if the channels of communication between the English authors and
their American readers were once fairly established, as they would be,
I think, under the arrangements suggested, it would not, I believe, be
possible at a later date to interfere with them, even if all
restrictions were removed. When American readers were buying by
thousands a suitable edition, at a moderate price, of a work by a
standard English author who was himself receiving a good return from
his enlarged sales, this author would be as little likely, at the
expiration of the ten years, to restrict those sales by insisting that
his work should be sold here in the costly and unsuitable English
edition, as to stipulate that it should be sold here in a Russian
translation. It is probable, also, that the including in the measure
of these restrictions, even if but for a limited term of years, would
gain for it some support that would be important for its success. It
seems probable that, if the present conditions of trade are
maintained, American book-makers need not be especially troubled ten
years hence by the competition of books manufactured in England, and
that, if the various duties affecting the manufacture could be
abolished, we could well spare the duty on books themselves.
I can, however, imagine no state of affairs in which it would be
economical or desirable to insist upon two settings of type for a book
designed for different groups of English-speaking readers; and the
more generally this first and most important part of the cost of a
book can be economized by being divided between the two markets, the
greater the advantage in the end to author, public, and publisher.
A proposition will doubtless be made in the course of a year by the
British Government for the appointment of an International Commission
for a fresh consideration of the subject, and our government ought to
prepare for this International Commission by the early appointment of
a Home Commission to give due consideration to the several interests
involved in the question, to collect again the different sets of
opinions, and to harmonize these as far as practicable.
By the time our English friends are ready to talk the matter with us,
we ought to have informed ourselves definitely as to what kind of a
measure is on the whole most desirable, and how much of this it is at
this present time practicable to carry into effect.
There has undoubtedly during the past ten years been a growth of
enlightened public sentiment on the question, but I should still be
indisposed to entrust its settlement to the House of Representatives,
and should suppose that it could probably be handled to best advantage
by the Senate in the shape of a treaty.
It is due to American publishers to explain that, in the absence of an
international copyright, there has grown up among them a custom of
making payments to foreign authors which has become, especially during
the last twenty-five years, a matter of very considerable importance.
Some of the English authors who testified before the British
Commission stated that the payments from the United States for their
books exceeded their receipts in Great Britain. These payments secure
of course to the American publisher no title of any kind to the books.
In some cases they obtain for him the use of advance sheets by means
of which he is able to get his edition printed a week or two in
advance of any unauthorized edition that might be prepared. In many
cases however, payments have been made some time after the publication
of the works, and when there was no longer even the slight advantage
of "advance sheets" to be gained from them.
While the authorization of the English author can convey no title or
means of defence against the interference of rival editions, the
leading publishing houses have, with very inconsiderable exceptions,
respected each others' arrangements with foreign authors, and the
editions announced as published "by arrangement with the author," and
on which payments in lieu of copyright have been duly made, have been
as a rule not interfered with. This understanding among the publishers
goes by the name of "the courtesy of the trade." I think it is safe to
say that it is to-day the exception for an English work of any value
to be published by any reputable house without a fair and often a very
liberal recognition being made of the rights (in equity) of the
author.
In view of the considerable amount of harsh language that has been
expended in England upon our American publishing houses, and the
opinion prevailing in England that the wrong in reprinting is entirely
one-sided, it is in order here to make the claim, which can, I
believe, be fully substantiated, that in respect to the recognition of
the rights of authors unprotected by law, their record has during the
past twenty-five years been in fact better than that of their English
brethren. They have become fully aroused in England to the fact that
American literary material has value and availability, and each year a
larger amount of this material has had the honor of being introduced
to the English public. According to the statistics of 1878, ten per
cent of the works issued in England in that year were American
reprints. The acknowledgments, however, of any rights on the part of
American authors have been few and far between, and the payments but
inconsiderable in amount. The leading English houses would doubtless
very much prefer to follow the American practice of paying for their
reprinted material, but they have not succeeded in establishing any
general understanding similar to our American "courtesy of the trade,"
and books that have been paid for by one house are, in a large number
of cases, promptly reissued in cheaper rival editions by other houses.
It is very evident that, in the face of open and unscrupulous
competition, continued or considerable payments to authors are
difficult to provide for; and the more credit is due to those firms
who have, in the face of this difficulty, kept a good record with
their American authors.
One London publisher in London made a custom for years of sending a
liberal remittance to the author of the "Wide, Wide World" for each
new volume sent to him. But the competition of the unauthorized
editions had proved so sharp that he told me he got no profit from his
purchases, and did not see how he could continue them.
The fate of the author of "Helen's Babies" was still harder. Of his
first book seven editions were issued by different British houses,
aggregating together an enormous sale, from which he received hardly a
penny. For the advance sheets of the sequel to this one firm paid him
L50. But so fierce was the scramble for it among the half dozen or
more publishers who hurried through their reprints from the American
journal in which it was appearing as a serial, that one energetic
house sent it out to the British public minus the concluding chapter,
while another, still more enterprising, had the last chapter of his
edition added by an English hand, and the moral of the story was
entirely transformed.
Of the books of Longfellow, Lowell, Holmes, Mrs. Prentiss, Mark Twain,
Dr. Mayo, Miss Phelps, Miss Alcott, Mrs. Stowe, Bayard Taylor, and
most of our more popular authors, there are, in like manner, various
rival editions, and no one house, however good its intentions, can
afford to make a practice of paying these authors, as its neighbors
cannot be depended upon to respect its arrangements.
On the other hand, the leading English authors, like George Eliot,
Miss Mulock, William Black, R. D. Blackmore, Wilkie Collins, Thomas
Hardy, Mrs. Alexander, Tyndall, Huxley, and very many others, have
received and are receiving liberal payments from their American
publishers, who are accustomed, as I have said, not to interfere with
each others' purchases.
In past years there have been sharp criticisms on the other side of an
American habit of "adapting" and reshaping English books, so that the
authors, in addition to the grievance of receiving no compensation for
their American editions, had the further cause for complaint that
these editions were not trustworthy and did not fairly represent their
productions. It was also charged that English material was
occasionally "annexed" bodily by American authors, without any credit
being given. For both sets of charges there have doubtless been
grounds, but the instances have certainly during the past quarter
century grown very much fewer. Indeed, the last kind of appropriation
would to-day be almost impossible, as the knowledge of English current
literature is so thorough that detection would follow at once.
"Appropriated" material could not be sold. In England, however, while
American literature is, as I have shown, beginning to be appreciated,
it is not yet at all thoroughly known, and there is therefore much
less risk in making use of it. As a matter of fact it has been so made
use of by literary hacks to a considerable extent, and there are some
amusing instances in which the English publishers and English critics
have been imposed upon by material that was _not_ original. Mr.
Randolph, the publisher, relates how he was innocently led to reprint
some essays brought to him by an English friend, which seemed to him
very fresh and original, and which proved to have been taken bodily
from one of Henry Ward Beecher's volumes. Mr. Randolph promptly called
Mr. Beecher's attention to his own felonious conduct, and handed him a
check for the considerable amount due him for copyright on the sales.
A translation by Charlton T. Lewis of Bengel's "Gnomon of the New
Testament" was reprinted in London as the work of "two clergymen of
the Church of England." Mr. Lewis' version was followed verbatim, with
the single exception of the omission of some Latin quotations.