question is to be argued. Are we free to legislate for the public good,
or are we not? Is this a question of expediency, or is it a question
of right? Many of those who have written and petitioned against the
existing state of things treat the question as one of right. The law of
nature, according to them, gives to every man a sacred and indefeasible
property in his own ideas, in the fruits of his own reason and
imagination. The legislature has indeed the power to take away this
property, just as it has the power to pass an act of attainder for
cutting off an innocent man's head without a trial. But, as such an act
of attainder would be legal murder, so would an act invading the
right of an author to his copy be, according to these gentlemen, legal
robbery.
Now, Sir, if this be so, let justice be done, cost what it may. I am
not prepared, like my honourable and learned friend, to agree to a
compromise between right and expediency, and to commit an injustice for
the public convenience. But I must say, that his theory soars far beyond
the reach of my faculties. It is not necessary to go, on the present
occasion, into a metaphysical inquiry about the origin of the right of
property; and certainly nothing but the strongest necessity would lead
me to discuss a subject so likely to be distasteful to the House. I
agree, I own, with Paley in thinking that property is the creature of
the law, and that the law which creates property can be defended only
on this ground, that it is a law beneficial to mankind. But it is
unnecessary to debate that point. For, even if I believed in a natural
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued. For the existing law gives an author
copyright during his natural life; nor do I propose to invade that
privilege, which I should, on the contrary, be prepared to defend
strenuously against any assailant. The only point in issue between
us is, how long after an author's death the State shall recognise a
copyright in his representatives and assigns; and it can, I think,
hardly be disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear to be most
conducive to the general good.
We may now, therefore, I think, descend from these high regions, where
we are in danger of being lost in the clouds, to firm ground and clear
light. Let us look at this question like legislators, and after fairly
balancing conveniences and inconveniences, pronounce between the
existing law of copyright, and the law now proposed to us. The question
of copyright, Sir, like most questions of civil prudence, is neither
black nor white, but grey. The system of copyright has great advantages
and great disadvantages; and it is our business to ascertain what these
are, and then to make an arrangement under which the advantages may be
as far as possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and learned
friend's bill is this, that it leaves the advantages nearly what they
are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is
desirable that we should have a supply of good books; we cannot have
such a supply unless men of letters are liberally remunerated; and the
least objectionable way of remunerating them is by means of copyright.
You cannot depend for literary instruction and amusement on the
leisure of men occupied in the pursuits of active life. Such men may
occasionally produce compositions of great merit. But you must not look
to such men for works which require deep meditation and long research.
Works of that kind you can expect only from persons who make literature
the business of their lives. Of these persons few will be found among
the rich and the noble. The rich and the noble are not impelled to
intellectual exertion by necessity. They may be impelled to intellectual
exertion by the desire of distinguishing themselves, or by the desire
of benefiting the community. But it is generally within these walls that
they seek to signalise themselves and to serve their fellow-creatures.
Both their ambition and their public spirit, in a country like this,
naturally take a political turn. It is then on men whose profession is
literature, and whose private means are not ample, that you must rely
for a supply of valuable books. Such men must be remunerated for their
literary labour. And there are only two ways in which they can be
remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public,
but to the government, or to a few great men, for the reward of their
exertions. It was thus in the time of Maecenas and Pollio at Rome,
of the Medici at Florence, of Louis the Fourteenth in France, of Lord
Halifax and Lord Oxford in this country. Now, Sir, I well know that
there are cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the distresses of men of
genius by the exercise of this species of liberality. But these cases
are exceptions. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught
to look for their daily bread to the favour of ministers and nobles. I
can conceive no system more certain to turn those minds which are formed
by nature to be the blessings and ornaments of our species into public
scandals and pests.
We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honourable and learned friend
talks very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory that day and night follow each other, that
lead is heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates. If, as my honourable and learned friend seems
to think, the whole world is in the wrong on this point, if the real
effect of monopoly is to make articles good and cheap, why does he stop
short in his career of change? Why does he limit the operation of so
salutary a principle to sixty years? Why does he consent to anything
short of a perpetuity? He told us that in consenting to anything short
of a perpetuity he was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct, extreme right
and expediency would coincide. Or rather, why should we not restore the
monopoly of the East India trade to the East India Company? Why should
we not revive all those old monopolies which, in Elizabeth's reign,
galled our fathers so severely that, maddened by intolerable wrong, they
opposed to their sovereign a resistance before which her haughty spirit
quailed for the first and for the last time? Was it the cheapness and
excellence of commodities that then so violently stirred the indignation
of the English people? I believe, Sir, that I may with safety take it
for granted that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honourable friend to find out any distinction
between copyright and other privileges of the same kind; any reason why
a monopoly of books should produce an effect directly the reverse of
that which was produced by the East India Company's monopoly of tea, or
by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It
is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not
to last a day longer than is necessary for the purpose of securing the
good.
Now, I will not affirm that the existing law is perfect, that it
exactly hits the point at which the monopoly ought to cease; but this
I confidently say, that the existing law is very much nearer that point
than the law proposed by my honourable and learned friend. For consider
this; the evil effects of the monopoly are proportioned to the length
of its duration. But the good effects for the sake of which we bear
with the evil effects are by no means proportioned to the length of its
duration. A monopoly of sixty years produces twice as much evil as
a monopoly of thirty years, and thrice as much evil as a monopoly of
twenty years. But it is by no means the fact that a posthumous monopoly
of sixty years gives to an author thrice as much pleasure and thrice
as strong a motive as a posthumous monopoly of twenty years. On the
contrary, the difference is so small as to be hardly perceptible. We
all know how faintly we are affected by the prospect of very distant
advantages, even when they are advantages which we may reasonably hope
that we shall ourselves enjoy. But an advantage that is to be enjoyed
more than half a century after we are dead, by somebody, we know not by
whom, perhaps by somebody unborn, by somebody utterly unconnected with
us, is really no motive at all to action. It is very probable that in
the course of some generations land in the unexplored and unmapped heart
of the Australasian continent will be very valuable. But there is none
of us who would lay down five pounds for a whole province in the heart
of the Australasian continent. We know, that neither we, nor anybody for
whom we care, will ever receive a farthing of rent from such a province.
And a man is very little moved by the thought that in the year 2000 or
2100, somebody who claims through him will employ more shepherds than
Prince Esterhazy, and will have the finest house and gallery of pictures
at Victoria or Sydney. Now, this is the sort of boon which my honourable
and learned friend holds out to authors. Considered as a boon to them,
it is a mere nullity, but considered as an impost on the public, it is
no nullity, but a very serious and pernicious reality. I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr Johnson's works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that
it would have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had bought
the copyright from Black Frank, the doctor's servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright
would exist in 1841 have been a source of gratification to Johnson?
Would it have stimulated his exertions? Would it have once drawn him out
of his bed before noon? Would it have once cheered him under a fit of
the spleen? Would it have induced him to give us one more allegory, one
more life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was writing our
debates for the Gentleman's Magazine, he would very much rather have had
twopence to buy a plate of shin of beef at a cook's shop underground.
Considered as a reward to him, the difference between a twenty years'
and sixty years' term of posthumous copyright would have been nothing or
next to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can buy
the Dictionary, the entire genuine Dictionary, for two guineas, perhaps
for less; I might have had to give five or six guineas for it. Do I
grudge this to a man like Dr Johnson? Not at all. Show me that the
prospect of this boon roused him to any vigorous effort, or sustained
his spirits under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But what I do
complain of is that my circumstances are to be worse, and Johnson's none
the better; that I am to give five pounds for what to him was not worth
a farthing.
The principle of copyright is this. It is a tax on readers for the
purpose of giving a bounty to writers. The tax is an exceedingly bad
one; it is a tax on one of the most innocent and most salutary of human
pleasures; and never let us forget, that a tax on innocent pleasures
is a premium on vicious pleasures. I admit, however, the necessity of
giving a bounty to genius and learning. In order to give such a bounty,
I willingly submit even to this severe and burdensome tax. Nay, I am
ready to increase the tax, if it can be shown that by so doing I should
proportionally increase the bounty. My complaint is, that my honourable
and learned friend doubles, triples, quadruples, the tax, and makes
scarcely any perceptible addition to the bounty. Why, Sir, what is the
additional amount of taxation which would have been levied on the public
for Dr Johnson's works alone, if my honourable and learned friend's
bill had been the law of the land? I have not data sufficient to form
an opinion. But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In reckoning the whole
additional sum which the holders of his copyrights would have taken
out of the pockets of the public during the last half century at twenty
thousand pounds, I feel satisfied that I very greatly underrate it. Now,
I again say that I think it but fair that we should pay twenty thousand
pounds in consideration of twenty thousand pounds' worth of pleasure and
encouragement received by Dr Johnson. But I think it very hard that we
should pay twenty thousand pounds for what he would not have valued at
five shillings.
My honourable and learned friend dwells on the claims of the posterity
of great writers. Undoubtedly, Sir, it would be very pleasing to see a
descendant of Shakespeare living in opulence on the fruits of his great
ancestor's genius. A house maintained in splendour by such a patrimony
would be a more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But, unhappily, it is
scarcely possible that, under any system, such a thing can come to pass.
My honourable and learned friend does not propose that copyright shall
descend to the eldest son, or shall be bound up by irrecoverable entail.
It is to be merely personal property. It is therefore highly improbable
that it will descend during sixty years or half that term from parent to
child. The chance is that more people than one will have an interest in
it. They will in all probability sell it and divide the proceeds. The
price which a bookseller will give for it will bear no proportion to the
sum which he will afterwards draw from the public, if his speculation
proves successful. He will give little, if anything, more for a term of
sixty years than for a term of thirty or five and twenty. The present
value of a distant advantage is always small; but when there is great
room to doubt whether a distant advantage will be any advantage at all,
the present value sink to almost nothing. Such is the inconstancy of
the public taste that no sensible man will venture to pronounce, with
confidence, what the sale of any book published in our days will be
in the years between 1890 and 1900. The whole fashion of thinking and
writing has often undergone a change in a much shorter period than
that to which my honourable and learned friend would extend posthumous
copyright. What would have been considered the best literary property
in the earlier part of Charles the Second's reign? I imagine Cowley's
Poems. Overleap sixty years, and you are in the generation of which Pope
asked, "Who now reads Cowley?" What works were ever expected with more
impatience by the public than those of Lord Bolingbroke, which appeared,
I think, in 1754? In 1814, no bookseller would have thanked you for the
copyright of them all, if you had offered it to him for nothing. What
would Paternoster Row give now for the copyright of Hayley's Triumphs of
Temper, so much admired within the memory of many people still living? I
say, therefore, that, from the very nature of literary property, it will
almost always pass away from an author's family; and I say, that the
price given for it to the family will bear a very small proportion to
the tax which the purchaser, if his speculation turns out well, will in
the course of a long series of years levy on the public.
If, Sir, I wished to find a strong and perfect illustration of the
effects which I anticipate from long copyright, I should select,--my
honourable and learned friend will be surprised,--I should select the
case of Milton's granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been brought forward
by the advocates of monopoly. My honourable and learned friend has
repeatedly told the story with great eloquence and effect. He has
dilated on the sufferings, on the abject poverty, of this ill-fated
woman, the last of an illustrious race. He tells us that, in the
extremity of her distress, Garrick gave her a benefit, that Johnson
wrote a prologue, and that the public contributed some hundreds
of pounds. Was it fit, he asks, that she should receive, in this
eleemosynary form, a small portion of what was in truth a debt? Why, he
asks, instead of obtaining a pittance from charity, did she not live in
comfort and luxury on the proceeds of the sale of her ancestor's works?
But, Sir, will my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was caused by the
shortness of the term of copyright? Why, at that time, the duration of
copyright was longer than even he, at present, proposes to make it. The
monopoly lasted, not sixty years, but for ever. At the time at which
Milton's granddaughter asked charity, Milton's works were the exclusive
property of a bookseller. Within a few months of the day on which the
benefit was given at Garrick's theatre, the holder of the copyright of
Paradise Lost,--I think it was Tonson,--applied to the Court of Chancery
for an injunction against a bookseller who had published a cheap edition
of the great epic poem, and obtained the injunction. The representation
of Comus was, if I remember rightly, in 1750; the injunction in 1752.
Here, then, is a perfect illustration of the effect of long copyright.
Milton's works are the property of a single publisher. Everybody who
wants them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal proceedings.
Thousands who would gladly possess a copy of Paradise Lost, must forego
that great enjoyment. And what, in the meantime, is the situation of the
only person for whom we can suppose that the author, protected at such
a cost to the public, was at all interested? She is reduced to utter
destitution. Milton's works are under a monopoly. Milton's granddaughter
is starving. The reader is pillaged; but the writer's family is not
enriched. Society is taxed doubly. It has to give an exorbitant price
for the poems; and it has at the same time to give alms to the only
surviving descendant of the poet.