their existing laws the necessity of _Patent protection_; and this case
of Switzerland is particularly brought forward by those opposed to the
Patent movement. The Commission which was appointed of Swiss experts (and
which said that Patent protection is unnecessary and tends to nothing
good) was impartial enough to avow that the particular advantages which
Switzerland draws from existing circumstances arise from the fact that
in all the adjoining countries the protection of Patents does exist,
but in Switzerland alone not so. Swiss industry, which is exceedingly
small, is placed in the position of imitating all foreign Patents which
find a market in Switzerland, and getting the benefit of the discoveries
made under the protection of foreign Patents. Switzerland is just in the
position of a man who keeps no cats because he can use his neighbours’.
HOLLAND.
I have before me a series of valuable illustrative documents printed by
the Government of the Netherlands, which are too long to introduce here.
The movement for abolishing Patents in that country, already referred to
on pages 196-230, was consummated by a striking majority, in the First
Chamber, of no less than 29 to 1; the abolition to take effect from 1st
January next, existing rights, of course, to be respected.
ON PERPETUITY OF PATENT-RIGHT.
The following observations, abridged from a review, by M. Aug. Boudron,
of M. le Hardy de Beaulieu’s _La Propriété et sa Rente_, are from the
_Journal des Economistes_ for May:—
The author assimilates the inventor’s privileges to proprietorship of a
field. Nevertheless there is a fundamental difference between the two
kinds of property. Independently of State privileges, the originator of a
discovery may use it as his own, and even to the exclusion of all others,
provided he keep it secret, so that he shall have no competitor to
encounter; whereas the owner of a field, if he is deprived of his right,
loses all. The advantages of an invention may be enjoyed simultaneously
by many persons; the produce of a field by one only. Now for a difference
of importance affecting the interests of the public. Give the possessor
of a field his right in perpetuity, and you have circumstances the most
favourable for its yielding all the produce which it can. Not so with
the privilege of an inventor, for it essentially consists in hindering
others from bringing the methods or materials that are patented into
use. From the time of invention and first _exploitation_ the privilege
is an obstacle; it limits the amount of good that society would in its
absence enjoy. What, then, is the motive of certain States in conceding
this exclusive privilege?... The legislators who have created the right
thought that there would in consequence be a larger number of useful
inventions and improvements, and that, on the whole, society would be a
greater gainer than if there were no Patents.... As there are innumerable
instruments and processes for which Patents have been and might still be
taken, there must, if perpetuity of privilege be granted, be a prodigious
number of monopolies, and almost no operation could be performed, nothing
done, without people being obliged to pay tribute to some privileged
person. There would be a countless host of administrators like receivers
of tolls and pontages, diminishing wealth in place of creating it; the
world would soon produce too little to sustain the monopolists and their
_employés_. We thus arrive at an impossibility. But conceive all this
possible, and the world must yet miss a great number of inventions and
improvements, that would under the system of perpetuity be prevented.
This is seen by the obstacles which even privileges of limited duration
throw in the way of new inventions. In actual practice progress is often
attained only by the use of previous inventions. But what if these are
the subject of Patents the holder of which will not come to terms or
cannot be treated with? Retardation, if the privilege is temporary; a
full stop, if perpetual.
NOTES ILLUSTRATIVE OF MR. MACFIE’S SPEECH.
[Page 17.]
The views taken in the text as to the meaning of the word “manufacture”
receive confirmation from the following extract from the _Engineer_ of
June 4, 1869:—
THE AMERICAN PATENT-LAW.
... Accordingly, in the first general Patent-Law passed by Congress,
the subject for which Patents were to be granted were described as
the invention or discovery of “any useful art, manufacture, engine,
machine, or device, or any improvement therein not before known or
used.” In the next statute—that of 21st February, 1793—the phraseology
was first introduced which has been ever since employed—namely, “any
new and useful art, machine, manufacture, or composition of matter, or
any new and useful improvement in any art, machine, manufacture, or
composition of matter, not known or used before the application for a
Patent.”... We have, then, the following four heads of subjects suitable
for Patents—viz., an art, a machine, a manufacture, and a composition of
matter.... In England, to make a new process the subject of a Patent,
the word “manufacture” would be used, and would have to be interpreted
somewhat liberally. Thus, in some cases, there might not be a perfect
distinction between the thing itself and the art or process of making the
thing.... With regard to the head “manufacture,” we cannot do better than
give the definition which Mr. Curtis has added as a note to his work.
He says a manufacture “would be any new combination of old materials,
constituting a new result or production in the form of a vendible
article, not being machinery.”...
As well as from the following extract from—
HINDMARCH ON “VENDING OR SELLING.”
“The sole privilege of making the invention as expressed ... is
in truth the same in substance as the sole privilege of using and
exercising it.... By the first section of the Statute of Monopolies,
patents granting ‘the sole buying, selling, making, working, or using
of anything’ are declared to be void, and the proviso in favour of
inventions contained in the sixth section only extends to ‘grants
of privilege of the sole working or making of any manner of new
manufactures,’ leaving the sole buying or selling of anything within
the prohibition.... The sole privilege granted by a _Patent_ for an
invention authorises the inventor ‘to make, use, exercise, and vend’ the
invention.... And as no one can use the invention except the patentee,
no one besides him can lawfully have such articles for sale.... Every
part of the privilege granted by a _Patent_ for an invention, when thus
explained (!) is therefore clearly within the meaning of the exception
contained in the _Statute_....”
I demur. Is there anything in the _Statute_ to prevent a person
_importing_ articles and _vending_ them though the same as the privileged
person is alone allowed to _make_ or _work_? In point of fact that surely
might, when the statute was passed, be done from Scotland and Ireland as
to manufactures not patented in these countries, but patented in England.
[Page 18.]
The number of Patents granted in the first fifty years after the Statute
of Monopolies was seventy-two, or at the rate of less than one and a-half
per annum.
[Page 19.]
The following list of applications for Patents up to the end of 1862, in
several classes, is abridged from Mr. Edwards’ interesting treatise on,
or rather against, “Letters Patent for Inventions:”—
Oct., 1852, to Before
Dec. 31, 1862. Oct., 1852. Total.
Railways and Railway Carriages 1,418 630 2,018
Telegraphs 558 109 667
Steam and Steam Boilers 1,293 377 1,670
Steam-engines 1,228 704 1,932
Spinning 1,837 1,120 2,957
Electricity, Galvanism, and Electroplating 662 38 700
Sewing and Embroidery 352 40 392
Heating and Evaporating 1,108 373 1,481
Fireplaces, Grates 317 169 481
Flues and Chimneys 278 75 353
Fuel 227 129 356
Ventilating Buildings, Carriages, Ships, &c. 392 81 473
SUGGESTIVE EXTRACTS FROM DR. PERCY’S WORKS ON METALLURGY.
[Page 34.]
THE COPPER TRADE.
It would be sheer waste of time even to notice many of the mis-called
improvements in copper—something for which Patents have been granted in
this country during the last twenty years. Some of the patentees display
such deplorable ignorance of the first principles of chemistry, and such
utter want of practical knowledge, as would seem hardly possible with the
present facilities of acquiring information.
Various Patents have been granted for alleged improvements in the
treating of copper ores, of certain products obtained in the smelting
of copper ores, &c., which are only worthy of notice as affording, as
I conceive, satisfactory illustrations of the defective state of our
existing Patent-Laws.... That a man who has worked out an original and
valuable process from his own brain, and who may have incurred great
expenses in bringing it to a practical issue—it may be, after years of
protracted toil and anxiety—should have secured to him by law during
a moderate term the exclusive privilege of reaping the substantial
reward of his own invention, appears to me as just and reasonable as
that an author should be protected against piratical and unprincipled
publishers. But that the law should confer upon a man the exclusive right
of appropriating to his own benefit facts which are perfectly familiar to
every tyro in chemistry, and of practising operations which are of daily
occurrence in the laboratories of chemists, is as impolitic as it is
unjust. And surely, the particular “inventions” above referred to belong
to this category. I cordially subscribe to the opinion expressed by Mr.
Grove, Q.C.—namely, that the real object of Patent-Law was to reward
not trivial inventions, which stop the way to greater improvements, but
substantial boons to the public; not changes such as any experimentalist
makes a score a day in his laboratory, but substantial, practical
discoveries, developed into an available form.
THE HOT BLAST.
It cannot strictly be termed a great invention, for what great exercise
of the inventive faculty could it possibly have required for its
development? There was no elaborate working out of a process or machine,
as has been the case in many inventions, but the thing was done at once.
Without wishing in the smallest degree to detract from the merit to which
Mr. Neilson is justly entitled, I may nevertheless express my opinion
that the hot-blast was a lucky hit rather than an invention, properly
so-called. Whatever opinion may be entertained as to the expediency of
Patents, there can be no doubt that such a Patent as this ought never
to have been granted. A Patent, even though it may be proved invalid,
confers upon its possessor a _locus standi_ in the eye of the law,
and enables him thereby to involve innocent persons in most expensive
litigation, to say nothing of the attendant annoyance and anxiety. The
preliminary examination before the Attorney or Solicitor-General is in
many cases an absolute farce, and nothing less. The present system,
although confessedly an improvement on the old one, is yet in many cases
highly obstructive and injurious to national interests.
[Page 50.]
The following passage from the _Engineer_ of May 28, proves clearly that
the Bessemer Patents do raise prices of iron:—
The present royalty on rails is 2_l._ per ton; on each ton a drawback of
1_l._ is nominally allowed, but the nature of Mr. Bessemer’s arrangements
with regard to scrap, crop ends, waste, &c., is such that the true
royalty on every ton of Bessemer rails delivered to a railway company—in
other words, sold—amounts to about 1_l._ 5s. 6d. After the lapse of Mr.
Bessemer’s Patents in February, 1870, this sum, all but 2s. 6d. per ton
royalty on plant, will be saved; and, therefore, in March next year,
rails may be bought for at least 1_l._ 3s. per ton less than they cost
now.
WORKING MEN AS INVENTORS.
[Page 62.]
Somewhat to my surprise, I am led to apprehend that the interest
of working men will be represented as coinciding with retention of
invention monopoly. I hope they are too wide awake to believe such a
fallacy, and too upright to approve of the continuance of a proved
national disadvantage, even though it were not a fallacy. If Patents are
injurious to the community by raising prices of articles of consumption
and utility, then the operative and labouring classes, inasmuch as they
constitute the bulk of the population, must be the chief sufferers.
If Patents interfere with labour in any direction, and tend to drive
trade away from our island, they, as the mainstays of industry, must be
the chief sufferers. The only pretence for such an allegation as I am
combating is this: some inventions in all trades, many inventions in
some trades, are made by artisans, who therefore will lose this form
of reward. True enough; but is the reward to these few individuals a
compensation for the evils inflicted on the many—the millions? and is not
the reward often so like the gift of a white elephant, or the catching of
a Tartar—so much of a delusion, a difficulty, a disadvantage, a snare, a
ruin—that their wisest counsellors would warn against its fascination,
especially if through their own favour for my propositions there is the
choice of fair and satisfactory alternative recompenses? The position
of working men in respect to Patents is frequently dealt with in this
compilation; their attention and co-operation I respectfully invite.
THE INVENTORS’ INSTITUTE.
An Inventors’ Institute has been formed for the purpose of maintaining
the Patent System, and amending it in such a way as, I fear and am sure,
will only make its yoke more galling and its burden heavier. The public
will do well to remember that, in spite of the name, this is rather a
society of patentees, including in its membership a portion only of those
inventors who take Patents, and not including the innumerable inventors
who do not take Patents, and who suffer by the system which the Institute
is intended to perpetuate, extend, and knit more tightly on us all and
in the first place on them. The honoured names who direct that society
will do well to consider who are inventors and what are inventions. If
they would but reflect that we are almost to a man inventors in the sense
in which the great mass of patentees are such, and that the majority
of inventions which choke the Patent-office are such as themselves, at
any rate, would disdain to claim and scorn to annoy their fellows by
patenting, they would probably arrive at the conviction—which is half-way
on the road to complete emancipation of trade from the fetters they
hug—that the system is so practically bad that rectification is hopeless,
and would join in endeavours, not to amend what is, even theoretically,
defective and bad, but to devise and introduce a thoroughly good
substitute. I hope the present publication will not be in vain, when it
endeavours to remove well-meaning prepossessions by force of truth.
JUSTIFICATION OF STATE REWARDS.
[Page 81.]
It is just and expedient that the public exchequer should pay inventors,
because—1. The State is entitled, or required, to undertake all
beneficent and useful works which, while they ought to be done for or
by the nation, yet cannot be so well, or at all, done by individuals.
2. Though individuals, more than the nation collectively, will reap the
benefit of these payments, it is manifest that the range of inventive
improvement is so wide that on the average of years every portion of the
community, and every individual in all portions, will share the benefit
pretty equally. 3. The demand for remunerating inventors proceeds from
the State, not manufacturers or producers. 4. These last cannot, under
the _régime_ of free trade, pass over from their own shoulders upon
those of consumers—who are the real, because ultimate, recipients of the
benefit—the burden of royalties, or other payments to inventors. 5. The
charge of £200,000 per annum is, after all, on a population of thirty-two
millions but a poll-tax of _three halfpence per head_. On how easy terms
would we obtain for the nation a universal, prompt enjoyment of every
novelty, and complete emancipation of our commerce and manufactures from
an incubus and thraldom which are every day becoming more depressing!
THE PATENT-OFFICE ESTABLISHMENT.
[Page 86.]
The Patent-office in Southampton-buildings, Chancery-lane, is an
establishment highly creditable to its organisers, but far too little
known. Its free consulting library should be more frequented. The
publications there sold at a cheap rate, and presented gratuitously to
public institutions which undertake to keep them for reference under
fitting regulations, are invaluable. The indexes, manuscript and printed,
there kept, are elaborate, and include lists of scientific and practical
matter affecting commerce and the arts, culled from periodicals issued
in all countries. No change in our manner of dealing with inventions can
deprive us of, or supersede the use of, such an accessible storehouse
of useful knowledge. The wonder is, that its advantages are not more
extensively availed of, and that so few even of our great towns have
applied for sets of its specifications and indexes. There is, in spite of
the establishment’s excellence, room for improvement in several respects,
one of which is in the providing better means for connecting itself with
the mass of the people in the provinces.
“THE NEW CANADIAN PATENT-LAW.—The Patent Bill which has been for some
time before the Parliament of the Dominion, has passed. The hope, to
which we alluded a few weeks ago, that the Bill might be modified to
enable Americans to obtain Patents in Canada, has not been fulfilled;
and the only effect of the Bill, so far as we are interested, is to
shut out American inventors from a larger amount of territory than
before.”—_Extract from “American Artisan,” June 20, 1869._
NOTES AND EXTRACTS ON ROYALTY IN COPYRIGHT, WITH ESPECIAL REFERENCE TO
INTERNATIONAL NEGOTIATIONS AFFECTING NORTH AMERICA.
INTERNATIONAL COPYRIGHT.
The present opportunity is availed of to recommend to notice the royalty
form of International Copyright as one which might probably be acceptable
to the people of the United States. I apprehend there is little or no
prospect of their agreeing to negotiate on the basis of the monopoly
form of Copyright which is now established in both countries. This has
often, but never successfully, been urged on the United States. The
advantages to British authors and publishers of so large an extension of
area are obvious. There are now in that country near forty millions of
people much more able to read and to buy than our thirty millions. It
is in the interests of British authors, publishers, and traders, most
desirable to get so large an addition to the number of the readers and
buyers of English literature. Every year the benefit will be greater,
but perhaps less easily attainable. The conscience and generous impulses
of the great American nation will naturally incline them to negotiate on
a principle which (as I hope they will consider that of royalties does)
at once fairly meets the reasonable claims of authors and the equally
reasonable claims, or rights, of the public. Authors and the trade would
soon become familiar with, and reconciled to, the change in the form
of their remuneration. They cannot but admit and feel that it is the
duty of statesmen, when constituting Copyright, to take care that its
effect is on the whole beneficial—as beneficial as is consistent with
fair treatment of authors—to the whole body of the people for whose
sake they govern. If I am warranted in anticipating that, whereas now
under monopoly a new book of intrinsic value is seldom or almost never
possessed by, or even seen in the houses of, the labouring population,
there would under royalties be a tendency to cheapness which might be
confidently relied on as the means of bringing such works within reach of
the masses—not when they are stale, but when they are fresh—can I doubt
that the concurrence both of authors and legislators is a matter of hope
approaching to certainty? When staleness is suggested as a deterrent
from, and freshness as a pleasant stimulus to, the reading of books, this
is no more than the practical recognition of a taste universal among
men and women, whether it concerns food material or food intellectual.
Let us work it for the good of our race. But it is a quality and power
unattainable except either by royalties or else by the Chinese system of
open literature. That the present system works unsatisfactorily, even
in a mere trade point of view, I am convinced, and for confirmation
refer to figures I append from a Return on the Book Trade lately laid
before the House of Commons. The sale of books at home and the export
of books to the colonies and foreign parts, admit of vast expansion.
We should legislate so as to accomplish, in regard to books, at the
least such an expansion as has been attained in regard to newspapers.
While the present form of Copyright remains in force, it would be vain
to expect that the existing hindrances will be overcome. Publishers,
therefore, may well co-operate. But I appeal with equal directness to
philanthropists, especially all those who have the power of representing
to their fellows what a folly and mistake it is to write books with a
view to the moral, social, and religious welfare of men, and yet to rest
satisfied with a system of law and trade that find the recompenses of
authorship and of publishing ventures in a limited sale of dear books
instead of an extensive sale of cheap ones—of a few good books at a large
profit instead of many good books at a small! I could adduce from my
own transactions conclusive proofs of the bad working and obstructive
operation of monopoly in Copyright. Ireland, in particular, may well
exclaim against it; for before the Union the publishers of Dublin used
to drive a useful business in reprinting British works which they have,
under the present system, been deprived of, to their own loss and the
incalculable disadvantage of their countrymen.
The Chinese, it is said, do not recognise Copyright. What the effect is
on their literature I know not. But their post-office and custom-house
officers should, at any rate, rejoice that, unlike the establishments in
enlightened Britain, they are not employed in the interests of private
individuals as detectives of contraband literature.
I submit with some confidence a scheme I have sketched. It is one which
I hope will at least prepare the way for this important national and
international question receiving the earnest attention it merits.
SUGGESTIONS FOR THE AMENDMENT OF THE SYSTEM OF COPYRIGHT FOR BOOKS, BY
MR. MACFIE.
(From the _Leith Herald_ of — Jan.)
1. The period of exclusive privileges to continue as at
present, unless any publisher demand that it shall be
shortened, which he may do any time after the end of the first
year, provided he intimates to the author or assignee of the
author, or their agent, at the Stationers’ Hall, or other place
duly appointed, that he intends to publish an edition at a
lower price within a year, and also lodges there a specimen
copy and a statement of the intended price.
2. On such new edition the intended publisher shall be liable
to pay in advance [five] per cent. on the retail price of the
book.
3. And there shall be impressed on the first sheet of each copy
a distinctive stamp approved by the Stationers’ Hall, without
which it shall be a penal offence to print or vend any copy.
4. Every publisher making such an intimation shall be bound to
actually publish, according to his notice, unless the author or
his assignee, within six months of his receiving intimation,
shall lodge at the Stationers’ Hall a bond obliging himself
to publish on his own account, an edition at least as good in
quality, at a price no higher; such bond to bar any action
under the provisions of Article 1.
5. No reprint to differ from the original edition, without
the author’s consent, either in the way of abbreviation,
enlargement, or alteration of the text.
6. If a book is out of print for a whole year, the copyright
privilege to lapse.
7. By special arrangements a longer period of exclusive
privilege shall be allowed for Encyclopædias, works _de luxe_,
&c. [Engravings, photographic illustrations, &c., not to be
subject to the condition now proposed in this paper.]