For what, then, is copyright given? For the clothing in which the body is

produced to the world. Examine Mr. Macaulay's "History of England" and you

will find that the body is composed of what is common property. Not only

have the facts been recorded by others, but the ideas, too, are derived

from the works of men who have labored for the world without receiving,

and frequently without the expectation of receiving, any pecuniary

compensation for their labors. Mr. Macaulay has read much and carefully,

and he has thus been enabled to acquire great skill in arranging and

clothing his facts; but the reader of his books will find in them no

contribution to positive knowledge. The works of men who make

contributions of that kind are necessarily controversial and distasteful

to the reader; for which reason they find few readers, and never pay their

authors. Turn now to our own authors, Prescott and Bancroft, who have

furnished us with historical works of so great excellence, and you will

find a state of things precisely similar. They have taken a large quantity

of materials out of the common stock, in which you, and I, and all of us

have an interest; and those materials they have so reclothed as to render

them attractive of purchasers; but this is all they have done. Look to Mr.

Webster's works, and you will find it the same. He was a great reader. He

studied the Constitution carefully, with a view to understand what were

the views of its authors, and those views he reproduced in different and

more attractive clothing, and there his work ended. He never pretended, as

I think, to furnish the world with any new ideas; and if he had done so,

he could have claimed no property in them. Few now read the heavy volumes

containing the speeches of Fox and Pitt. They did nothing but reproduce

ideas that were common property, and in such clothing as answered the

purposes of the moment. Sir Robert Peel did the same. The world would now

be just as wise had he never lived, for he made no contribution to the

general stock of knowledge. The great work of Chancellor Kent is, to use

the words of Judge Story, "but a new combination and arrangement of old

materials, in which the skill and judgment of the author in the selection

and exposition, and accurate use of those materials, constitute the basis

of his reputation, as well as of his copyright." The world at large is the

owner of all the facts that have been collected, and of all the ideas that

have been deduced from them, and its right in them is precisely the same

that the planter has in the bale of cotton that has been raised on his

plantation; and the course of proceeding of both has, thus far, been

precisely similar; whence I am induced to infer that, in both cases, right

has been done. When the planter hands his cotton to the spinner and the

weaver, he does not say, "Take this and convert it into cloth, and keep

the cloth;" but he does say, "Spin and weave this cotton, and for so doing

you shall have such interest in the cloth as will give you a fair

compensation for your labor and skill, but, when that shall have been

paid, _the cloth will be mine_." This latter is precisely what society,

the owner of facts and ideas, says to the author: "Take these raw

materials that have been collected, put them together, and clothe them

after your own fashion, and for a given time we will agree that nobody

else shall present them in the same dress. During that time you may

exhibit them for your own profit, but at the end of that period the

clothing will become common property, as the body now is. It is to the

contributions of your predecessors to our common stock that you are

indebted for the power to make your book, and we require you, in your

turn, to contribute towards the augmentation of the stock that is to be

used by your successors." This is justice, and to grant more than this

would be injustice.

Let us turn now, for a moment, to the producers of works of fiction. Sir

Walter Scott had carefully studied Scottish and Border history, and thus

had filled his mind with facts preserved, and ideas produced, by others,

which he reproduced in a different form. He made no contribution to

knowledge. So, too, with our own very successful Washington Irving. He

drew largely upon the common stock of ideas, and dressed them up in a new,

and what has proved to be a most attractive form. So, again, with Mr.

Dickens. Read his "Bleak House" and you will find that he has been a most

careful observer of men and things, and has thereby been enabled to

collect a great number of facts that he has dressed up in different forms,

but that is all he has done. He is in the condition of a man who had

entered a large garden and collected a variety of the most beautiful

flowers growing therein, of which he had made a fine bouquet. The owner of

the garden would naturally say to him: "The flowers are mine, but the

arrangement is yours. You cannot keep the bouquet, but you may smell it,

or show it for your own profit, for an hour or two, but then it must come

to me. If you prefer it, I am willing to pay you for your services, giving

you a fair compensation for your time and taste." This is exactly what

society says to Mr. Dickens, who makes such beautiful literary bouquets.

What is right in the individual, cannot be wrong in the mass of

individuals of which society is composed. Nevertheless, the author objects

to this, insisting that he is owner of the bouquet itself, although he has

paid no wages to the man who raised the flowers. Were he asked to do so,

he would, as I shall show in another letter, regard it as leading to great

injustice.

LETTER II.

Let us suppose, now, that you should move, in the Senate, a resolution

looking to the establishment of the exclusive right of making known the

facts, or ideas, that might be brought to light, and see what would be the

effect. You would, as I think, find yourself at once surrounded by the

gentlemen who dress up those facts and ideas, and issue them in the form

of books. The geographer would say to you: "My dear sir, this will never

do. Look at my book, and you will see that it is drawn altogether from the

works of others, many of whom have sunk their fortunes, while others have

lost their lives, in pursuit of the knowledge that I so cheaply give the

world. You will find there the essence of the works of Humboldt, and of

Wilkes. All of Franklin's discoveries are there, and I am now waiting only

for the appearance of McClure's voyage in the Arctic regions to give a new

edition of my book. Reflect, I beseech you, upon what you are about to do.

Very few persons have leisure to read, or means to pay for the books of

these travellers. A few hundred copies are sufficient to satisfy the

demand, and then their works die out. Of mine, on the contrary, the sale

is ten, fifteen, or twenty thousand annually, and thus is knowledge

disseminated throughout the world, enabling the men who furnish me with

facts to reap _a rich harvest of never dying fame_. Grant them a copyright

to the new ideas they may supply to the world, and at once you put a stop

to the production of such books as mine, to my great injury and to the

loss of mankind at large. Facts and ideas are common property, and their

owners, the public, have a right to use them as they will."

The historian would say: "Mr. Senator, if you persist in this course, you

will never again see histories like mine. Here are hundreds of people

scattered over the country, industriously engaged in disinterring facts

relating to our early history. They are enthusiasts, and many of them are

very poor. Some of them contrive to publish, in the form of books, the

results of their researches, while others give them to the newspapers, or

to the historical societies, and thus they are enabled to come before the

world. Few people buy such things, and it not unfrequently happens that

men who have spent their lives in the collection of important facts, waste

much of their small means in giving them to an ungrateful nation.

Nevertheless, they have their reward in the consciousness that they are

thus enabling others to furnish the world with accurate histories of their

country. I find them of infinite use. They are my hewers of wood and

drawers of water, and they never look for payment for their labor. Deprive

me of their services, and I shall be obliged to abandon the production of

books, and return to the labors of my profession--and they will be

deprived of fame, while the public will be deprived of knowledge."

The medical writer would say: "Mr. Senator, should you succeed in carrying

out the idea with which you have commenced, you will, I fear, be the cause

of great injury to our profession, and probably of great loss of life, for

you will thereby arrest the dissemination of knowledge. We have, here and

abroad, thousands of industrious and thoughtful men, more intent upon

doing good than upon pecuniary profit, who give themselves to the study of

particular diseases, furnishing the results to our journals, and not

unfrequently publishing monographs of the highest value. The sale of these

is always small, and their publication not unfrequently makes heavy drafts

on the small means of their authors. Such men are of infinite use to me,

for it is by aid of their most valuable labors that I have found myself

enabled to prepare the numerous and popular works that I have given to the

world. Look at them. There are several volumes of each, of which I sell

thousands annually, to my great profit. Deprive me of the power to avail

myself of the brains of the working men of the profession and my books

will soon cease to be of any value, and I shall lose the large income now

realized from them, while the public will suffer in their health by reason

of the increased difficulty of disseminating information."

The professor would ask you to look at his lectures and satisfy yourself

that they contained no single idea that had originated with himself.

"How," he would ask, "could these valuable lectures have been produced,

had I been deprived of the power to avail myself of the facts collected by

the working-men, and the principles deduced from them by the thinkers of

the world? I have no leisure to collect facts or analyze them. For many

years past, these lectures have yielded me a large income, and so will

they continue to do, provided I be allowed to do in future as in time past

I have done, appropriate to my own use all the new facts and new ideas I

meet with, crediting their authors or not as I find it best to suit my

purpose. Abandon your idea, my dear sir; it cannot be carried out. The men

who work, and the men who think, must content themselves with fame, and be

thankful if the men who write books and deliver lectures do not

appropriate to themselves the entire credit of the facts they use, and the

ideas they borrow."

The teacher of natural science would say: "My friend, have you reflected

on what you are about to do? Look at our collections, and see how they

have been enlarged within the last half century. Asia and Africa, and the

islands of the Southern Ocean, have been traversed by indefatigable men

who, at the hazard of life, and often at the cost of fortune, have

quadrupled our knowledge of vegetable and animal life. Such men do not ask

for compensation of any kind. They are willing to work for nothing. Why,

then, not let them? Look at the vast contributions to geological knowledge

that have been made throughout the Union by men who were content with a

bare support, and glad to have the results of their labors published, as

they have been, at the public cost. Such men ask no copyright. When they

publish, it is almost always at a loss. Wilson lived and died poor. So did

Audubon, to whose labors we are indebted for so much ornithological

knowledge. Morton expended a large sum in the preparation and publication

of his work on crania. Agassiz did the same with his great work on fishes.

Cuvier had nothing but fame to bequeath to his family. Lamarck's great

work on the _invertebratae_ sold so slowly that very many years elapsed

before the edition was exhausted; but he would have found his reward had

he lived to see his ideas appropriated without acknowledgment, and

reclothed by the author of 'Vestiges of Creation,' of which the sale has

been so large. This, my friend, is the use for which such men as Lamarck

and Cuvier were intended. They collect and classify the facts, and we

popularize them to our own profit. Look at my works and see, bulky as they

are, how many editions have been printed, and think how profitable they

must have been to the publisher and myself. Look further, and see how

numerous are the books to which my labors have indirectly given birth. See

the many school-books in relation to botany and other departments of

natural science, the authors of which know little of what they undertake

to teach, except what they have drawn from me and others like myself.

Again, see how numerous are the 'Flora's Emblems,' and the 'Garlands of

Flowers,' and the 'Flora's Dictionaries,' and how large is their sale--

and how large must be the profits of those engaged in their production. To

recognize in such men as Cuvier and Lamarck the existence of any right to

either their facts or their deductions would be an act of great injustice

towards the race of literary men, while most inexpedient as regards the

world at large, now so cheaply supplied with knowledge. As regards the

question of international copyright now before the Senate, my views are

different. Several of my books have been published abroad, and my

publisher here tells me, that to prevent the republication of others he is

obliged to supply them cheaply for foreign markets, and thus am I deprived

of a fair and just reward for my labors. Copyright should be universal and

eternal, and such, I am persuaded, will be the result at which you will

arrive when you shall have thoroughly studied the subject."

Having studied it, and having given full consideration to the views that

they and others had presented, your answer would probably be to the

following effect: "It is clear, gentlemen, from your own showing, that

there are two distinct classes of persons engaged in the production of

books--the men who furnish the body, and those who dress it up for

production before the world. The first class are generally poor, and

likely to continue so. They labor without any view to pecuniary advantage.

They are, too, very generally helpless. Animated to their work solely by a

desire to penetrate into the secrets of nature the character of their

minds unfits them for mixing in a money-getting world, while you are

always in that world, ready to enforce your claims to its consideration.

As a consequence of this, they are rarely allowed even the credit that is

due to them. Their discoveries become at once common property, to be used

by men like yourselves, and for your own individual profit. We have here

among ourselves a gentleman who has given to astronomy a new and highly

important law essential to the perfection of the science, the discovery of

which has cost him the labor of a life, as a consequence of which he is

poor and likely so to remain. Important as was his discovery, his name is

already so completely forgotten that there is probably not a single one

among you that can now recall it, and yet his law figures in all the

recent books. Is this right? Has _he_ no claim to consideration?"

"In answer, you will say, that 'to admit the existence of any such rights

is not only impossible, but _inexpedient_, even were it possible.

Knowledge advances by slow and almost imperceptible steps, and each is but

the precursor of a new and more important one. Were each discoverer of a

new truth to be authorized to monopolize the teaching of it millions of

men, to whom, by our aid, it is communicated, would remain in ignorance of

it, and thus would farther advance be prevented. In all times past, such

truths have been regarded as common property; and so,' you will add, 'they

must continue to be regarded. Rely upon it, the best interests of society

require that such shall continue to be the case, however great the

apparent injustice to the discoverer.'

"Here, you will observe, you waive altogether the question of right which

you so strongly enforce in regard to yourselves. It may be that you have

reason; but if so, how do you yourselves stand in your relations with the

great mass of human beings whose right to this common property is equal

with your own? For thousands of years working men, collectors of facts and

philosophers, have been contributing to the common stock, and the treasure

accumulated is now enormously great; and yet the mass of mankind remain

still ignorant, and are poor, depraved, and wretched, because ignorant.

Under such circumstances, justice would seem to require of the legislator

that he should sanction no measure tending to throw unnecessary difficulty

in the way of the dissemination of knowledge. To do so, would be to

deprive the many of the power to profit by their interest in the common

property. To do so, would be to deprive the men who have contributed to

the accumulation of this treasure of even the reward to which, as you

admit, they justly may make a claim. If they are to be satisfied with

fame, we must do nothing tending to limit the dissemination of their

ideas, because to do so would be to limit their power to acquire fame. If

they are to be satisfied with the idea of doing good to their fellow-men,

we must avoid every thing tending to limit the knowledge of their

discoveries, because to do so would be to deprive them of much of their

small reward. The state of the matter is, as I conceive, as follows: On

one side of you stand the contributors to the vast treasure of knowledge

that mankind has accumulated, and is accumulating--men who have, in

general, labored without fee or reward; on the other side of you stand the

owners of this vast treasure, desirous to have it fashioned in a manner to

suit their various tastes and powers, that all may be enabled to profit by

its possession. Between them stand yourselves, middlemen between the

producers and the consumers. It is your province to combine the facts and

ideas, as does the manufacturer when he takes the raw materials of cloth,

and, by the aid of the skill of numerous working men, past and present,

elaborates them into the beautiful forms that so much gratify our eyes in

passing through the Crystal Palace. For this service you are to be paid;

but to enable you to receive payment you need the aid of the legislator,

as the common law grants no more copyright for the form in which ideas are

expressed than for the ideas themselves. In granting this aid he is

required to see that, while he secures that you have justice, he does no

injustice to the men who produce the raw material of your books, nor to

the community whose common property it is. In granting it, he is bound to

use his efforts to attain the knowledge needed for enabling him to do

justice to all parties, and not to you alone. The laws which elsewhere

govern the distribution of the proceeds of labor, must apply in your case

with equal force. Looking at them, we see that, with the growth of

population and of wealth, there is everywhere a tendency to diminution in

the proportion of the product that is allowed to the men who stand between

the producer and the consumer. In new settlements, trade is small and the

shopkeeper requires large profits to enable him to live; and, while the

consumer pays a high price, the producer is compelled to be content with a

low one. In new settlements, the miller takes a large toll for the

conversion of corn into flour, and the spinner and weaver take a large

portion of the wool as their reward for converting the balance into cloth.

Nevertheless, the shopkeeper, the miller, the spinner, and the weaver are

poor, because trade is small. As wealth and population grow, we find the

shopkeeper gradually reducing his charge, until from fifty it falls to

five per cent.; the miller reducing his, until he finds that he can afford

to give all the flour that is yielded by the corn, retaining for himself

the bran alone; and the spinner and weaver contenting himself with a

constantly diminishing proportion of the wool; and now it is that we find

shopkeepers, millers, and manufacturers grow rich, while consumers are

cheaply supplied because of the vast increase of trade. In your case,

however, the course of proceeding has been altogether different. Half a

century since, when our people were but four millions in number, and were

poor and scattered, gentlemen like you were secured in the monopoly of

their works for fourteen years, with a power of renewal for a similar

term. Twenty years since, when the population had almost tripled, and

their wealth had sixfold increased, and when the facilities of

distribution had vastly grown, the term was fixed at twenty-eight years,

with renewal to widow or children for fourteen years more. At the present

moment, you are secured in a monopoly for forty-two years, among a

population of twenty-six millions of people, certain, at the close of

twenty years more, to be fifty millions and likely, at the close of

another half century, to be a hundred millions, and with facilities, for

the disposal of your products, growing at a rate unequaled in the world.

With this vast increase of market, and increase of power over that market,

the consumer should be supplied more cheaply than in former times; yet

such is not the case. The novels of Mrs. Rowson and Charles B. Brown, and

the historical works of Dr. Ramsay, persons who then stood in the first

rank of authors, sold as cheaply as do now the works of Fanny Fern, the

'Reveries' of Ik Marvel, or the history of Mr. Bancroft; and yet, in the

period that has since elapsed, the cost of publication has fallen probably

twenty-five per cent. We have here an inversion of the usual order of

things, and it is with these facts before us that you claim to have your

monopoly extended over another thirty millions of people; in consideration

of which, our people are to grant to the authors of foreign countries a

monopoly of the privilege of supplying them with books produced abroad.

This application strikes me as unwise. It tends to produce inquiry, and

that will, probably, in its turn, lead rather to a reduction than an

extension of your privileges. Can it be supposed that when, but a few

years hence, our population shall have attained a height of fifty

millions, with a demand for books probably ten times greater than at

present, the community will be willing to continue to you a monopoly,

during forty-two years, of the right of presenting a body that is common

property, as compensation for putting it in a new suit of clothing? I

doubt it much, and would advise you, for your own good, to be content with

what you have. Aesop tells us that the dog lost his piece of meat in the

attempt to seize a shadow, and such may prove to be the case on this

occasion. So, too, may it be with the owners of patents. The discoverers

of principles receive nothing, but those who apply them enjoy a monopoly

created by law for their use. Everybody uses chloroform, but nobody pays

its discoverer. The man who taught us how to convert India rubber into

clothing has not been allowed even fame, while our courts are incessantly

occupied with the men who make the clothing. Patentees and producers of

books are incessantly pressing upon Congress with claims for enlargement

of their privileges, and are thus producing the effect of inducing an

inquiry into the validity of their claim to what they now enjoy. Be

content, my friends; do not risk the loss of a part of what you have in

the effort to obtain more."

Letters on International Copyright; Second Edition · 第 2 / 8 段