the House to an evil, which is perhaps more to be apprehended when an
author's copyright remains in the hands of his family, than when it is
transferred to booksellers. I seriously fear that, if such a measure
as this should be adopted, many valuable works will be either totally
suppressed or grievously mutilated. I can prove that this danger is
not chimerical; and I am quite certain that, if the danger be real,
the safeguards which my honourable and learned friend has devised are
altogether nugatory. That the danger is not chimerical may easily be
shown. Most of us, I am sure, have known persons who, very erroneously
as I think, but from the best motives, would not choose to reprint
Fielding's novels, or Gibbon's History of the Decline and Fall of the
Roman Empire. Some gentlemen may perhaps be of opinion that it would be
as well if Tom Jones and Gibbon's History were never reprinted. I will
not, then, dwell on these or similar cases. I will take cases respecting
which it is not likely that there will be any difference of opinion
here; cases, too, in which the danger of which I now speak is not matter
of supposition, but matter of fact. Take Richardson's novels. Whatever
I may, on the present occasion, think of my honourable and learned
friend's judgment as a legislator, I must always respect his judgment as
a critic. He will, I am sure, say that Richardson's novels are among
the most valuable, among the most original works in our language. No
writings have done more to raise the fame of English genius in foreign
countries. No writings are more deeply pathetic. No writings, those of
Shakspeare excepted, show more profound knowledge of the human heart. As
to their moral tendency, I can cite the most respectable testimony. Dr
Johnson describes Richardson as one who had taught the passions to move
at the command of virtue. My dear and honoured friend, Mr Wilberforce,
in his celebrated religious treatise, when speaking of the unchristian
tendency of the fashionable novels of the eighteenth century, distinctly
excepts Richardson from the censure. Another excellent person, whom I
can never mention without respect and kindness, Mrs Hannah More, often
declared in conversation, and has declared in one of her published
poems, that she first learned from the writings of Richardson those
principles of piety by which her life was guided. I may safely say that
books celebrated as works of art through the whole civilised world, and
praised for their moral tendency by Dr Johnson, by Mr Wilberforce, by
Mrs Hannah More, ought not to be suppressed. Sir, it is my firm belief,
that if the law had been what my honourable and learned friend proposes
to make it, they would have been suppressed. I remember Richardson's
grandson well; he was a clergyman in the city of London; he was a most
upright and excellent man; but he had conceived a strong prejudice
against works of fiction. He thought all novel-reading not only
frivolous but sinful. He said,--this I state on the authority of one of
his clerical brethren who is now a bishop,--he said that he had never
thought it right to read one of his grandfather's books. Suppose, Sir,
that the law had been what my honourable and learned friend would make
it. Suppose that the copyright of Richardson's novels had descended, as
might well have been the case, to this gentleman. I firmly believe,
that he would have thought it sinful to give them a wide circulation.
I firmly believe, that he would not for a hundred thousand pounds have
deliberately done what he thought sinful. He would not have reprinted
them. And what protection does my honourable and learned friend give to
the public in such a case? Why, Sir, what he proposes is this: if a book
is not reprinted during five years, any person who wishes to reprint
it may give notice in the London Gazette: the advertisement must be
repeated three times: a year must elapse; and then, if the proprietor of
the copyright does not put forth a new edition, he loses his exclusive
privilege. Now, what protection is this to the public? What is a new
edition? Does the law define the number of copies that make an edition?
Does it limit the price of a copy? Are twelve copies on large paper,
charged at thirty guineas each, an edition? It has been usual, when
monopolies have been granted, to prescribe numbers and to limit prices.
But I did not find the my honourable and learned friend proposes to do
so in the present case. And, without some such provision, the security
which he offers is manifestly illusory. It is my conviction that, under
such a system as that which he recommends to us, a copy of Clarissa
would have been as rare as an Aldus or a Caxton.
I will give another instance. One of the most instructive, interesting,
and delightful books in our language is Boswell's Life of Johnson.
Now it is well known that Boswell's eldest son considered this book,
considered the whole relation of Boswell to Johnson, as a blot in the
escutcheon of the family. He thought, not perhaps altogether without
reason, that his father had exhibited himself in a ludicrous and
degrading light. And thus he became so sore and irritable that at last
he could not bear to hear the Life of Johnson mentioned. Suppose that
the law had been what my honourable and learned friend wishes to
make it. Suppose that the copyright of Boswell's Life of Johnson had
belonged, as it well might, during sixty years, to Boswell's eldest
son. What would have been the consequence? An unadulterated copy of the
finest biographical work in the world would have been as scarce as the
first edition of Camden's Britannia.
These are strong cases. I have shown you that, if the law had been what
you are now going to make it, the finest prose work of fiction in the
language, the finest biographical work in the language, would very
probably have been suppressed. But I have stated my case weakly. The
books which I have mentioned are singularly inoffensive books, books not
touching on any of those questions which drive even wise men beyond the
bounds of wisdom. There are books of a very different kind, books which
are the rallying points of great political and religious parties. What
is likely to happen if the copyright of one of the these books should by
descent or transfer come into the possession of some hostile zealot? I
will take a single instance. It is only fifty years since John Wesley
died; and all his works, if the law had been what my honourable and
learned friend wishes to make it, would now have been the property of
some person or other. The sect founded by Wesley is the most numerous,
the wealthiest, the most powerful, the most zealous of sects. In every
parliamentary election it is a matter of the greatest importance to
obtain the support of the Wesleyan Methodists. Their numerical strength
is reckoned by hundreds of thousands. They hold the memory of their
founder in the greatest reverence; and not without reason, for he was
unquestionably a great and a good man. To his authority they constantly
appeal. His works are in their eyes of the highest value. His doctrinal
writings they regard as containing the best system of theology ever
deduced from Scripture. His journals, interesting even to the common
reader, are peculiarly interesting to the Methodist: for they contain
the whole history of that singular polity which, weak and despised
in its beginning, is now, after the lapse of a century, so strong,
so flourishing, and so formidable. The hymns to which he gave his
imprimatur are a most important part of the public worship of his
followers. Now, suppose that the copyright of these works should belong
to some person who holds the memory of Wesley and the doctrines and
discipline of the Methodists in abhorrence. There are many such persons.
The Ecclesiastical Courts are at this very time sitting on the case of
a clergyman of the Established Church who refused Christian burial to a
child baptized by a Methodist preacher. I took up the other day a work
which is considered as among the most respectable organs of a large
and growing party in the Church of England, and there I saw John Wesley
designated as a forsworn priest. Suppose that the works of Wesley were
suppressed. Why, Sir, such a grievance would be enough to shake the
foundations of Government. Let gentlemen who are attached to the Church
reflect for a moment what their feelings would be if the Book of Common
Prayer were not to be reprinted for thirty or forty years, if the price
of a Book of Common Prayer were run up to five or ten guineas. And
then let them determine whether they will pass a law under which it is
possible, under which it is probable, that so intolerable a wrong may be
done to some sect consisting perhaps of half a million of persons.
I am so sensible, Sir, of the kindness with which the House has listened
to me, that I will not detain you longer. I will only say this, that if
the measure before us should pass, and should produce one-tenth part of
the evil which it is calculated to produce, and which I fully expect it
to produce, there will soon be a remedy, though of a very objectionable
kind. Just as the absurd acts which prohibited the sale of game were
virtually repealed by the poacher, just as many absurd revenue acts have
been virtually repealed by the smuggler, so will this law be virtually
repealed by piratical booksellers. At present the holder of copyright
has the public feeling on his side. Those who invade copyright are
regarded as knaves who take the bread out of the mouths of deserving
men. Everybody is well pleased to see them restrained by the law, and
compelled to refund their ill-gotten gains. No tradesman of good repute
will have anything to do with such disgraceful transactions. Pass this
law: and that feeling is at an end. Men very different from the present
race of piratical booksellers will soon infringe this intolerable
monopoly. Great masses of capital will be constantly employed in the
violation of the law. Every art will be employed to evade legal pursuit;
and the whole nation will be in the plot. On which side indeed should
the public sympathy be when the question is whether some book as
popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every
cottage, or whether it shall be confined to the libraries of the rich
for the advantage of the great-grandson of a bookseller who, a hundred
years before, drove a hard bargain for the copyright with the author
when in great distress? Remember too that, when once it ceases to be
considered as wrong and discreditable to invade literary property, no
person can say where the invasion will stop. The public seldom makes
nice distinctions. The wholesome copyright which now exists will share
in the disgrace and danger of the new copyright which you are about to
create. And you will find that, in attempting to impose unreasonable
restraints on the reprinting of the works of the dead, you have, to
a great extent, annulled those restraints which now prevent men from
pillaging and defrauding the living. If I saw, Sir, any probability that
this bill could be so amended in the Committee that my objections might
be removed, I would not divide the House in this stage. But I am so
fully convinced that no alteration which would not seem insupportable to
my honourable and learned friend, could render his measure supportable
to me, that I must move, though with regret, that this bill be read a
second time this day six months.
*****
COPYRIGHT. (APRIL 6, 1842) A SPEECH DELIVERED IN A COMMITTEE OF THE
HOUSE OF COMMONS ON THE 6TH OF APRIL 1842.
On the third of March 1842, Lord Mahon obtained permission to bring in
a bill to amend the Law of Copyright. This bill extended the term of
Copyright in a book to twenty-five years, reckoned from the death of the
author.
On the sixth of April the House went into Committee on the bill, and Mr
Greene took the Chair. Several divisions took place, of which the result
was that the plan suggested in the following Speech was, with some
modifications, adopted.
Mr Greene,--I have been amused and gratified by the remarks which
my noble friend (Lord Mahon.) has made on the arguments by which I
prevailed on the last House of Commons to reject the bill introduced by
a very able and accomplished man, Mr Serjeant Talfourd. My noble friend
has done me a high and rare honour. For this is, I believe, the first
occasion on which a speech made in one Parliament has been answered in
another. I should not find it difficult to vindicate the soundness of
the reasons which I formerly urged, to set them in a clearer light,
and to fortify them by additional facts. But it seems to me that we had
better discuss the bill which is now on our table than the bill which
was there fourteen months ago. Glad I am to find that there is a very
wide difference between the two bills, and that my noble friend,
though he has tried to refute my arguments, has acted as if he had been
convinced by them. I objected to the term of sixty years as far too
long. My noble friend has cut that term down to twenty-five years. I
warned the House that, under the provisions of Mr Serjeant Talfourd's
bill, valuable works might not improbably be suppressed by the
representatives of authors. My noble friend has prepared a clause which,
as he thinks, will guard against that danger. I will not, therefore,
waste the time of the Committee by debating points which he has
conceded, but will proceed at once to the proper business of this
evening.
Sir, I have no objection to the principle of my noble friend's bill.
Indeed, I had no objection to the principle of the bill of last year. I
have long thought that the term of copyright ought to be extended. When
Mr Serjeant Talfourd moved for leave to bring in his bill, I did not
oppose the motion. Indeed I meant to vote for the second reading, and
to reserve what I had to say for the Committee. But the learned Serjeant
left me no choice. He, in strong language, begged that nobody who was
disposed to reduce the term of sixty years would divide with him. "Do
not," he said, "give me your support, if all that you mean to grant to
men of letters is a miserable addition of fourteen or fifteen years to
the present term. I do not wish for such support. I despise it." Not
wishing to obtrude on the learned Serjeant a support which he despised,
I had no course left but to take the sense of the House on the second
reading. The circumstances are now different. My noble friend's bill
is not at present a good bill; but it may be improved into a very
good bill; nor will he, I am persuaded, withdraw it if it should be so
improved. He and I have the same object in view; but we differ as to the
best mode of attaining that object. We are equally desirous to extend
the protection now enjoyed by writers. In what way it may be extended
with most benefit to them and with least inconvenience to the public, is
the question.
The present state of the law is this. The author of a work has a certain
copyright in that work for a term of twenty-eight years. If he should
live more than twenty-eight years after the publication of the work, he
retains the copyright to the end of his life.
My noble friend does not propose to make any addition to the term
of twenty-eight years. But he proposes that the copyright shall last
twenty-five years after the author's death. Thus my noble friend makes
no addition to that term which is certain, but makes a very large
addition to that term which is uncertain.
My plan is different. I would made no addition to the uncertain term;
but I would make a large addition to the certain term. I propose to add
fourteen years to the twenty-eight years which the law now allows to an
author. His copyright will, in this way, last till his death, or till
the expiration of forty-two years, whichever shall first happen. And I
think that I shall be able to prove to the satisfaction of the Committee
that my plan will be more beneficial to literature and to literary men
than the plan of my noble friend.
It must surely, Sir, be admitted that the protection which we give to
books ought to be distributed as evenly as possible, that every book
should have a fair share of that protection, and no book more than a
fair share. It would evidently be absurd to put tickets into a wheel,
with different numbers marked upon them, and to make writers draw, one
a term of twenty-eight years, another a term of fifty, another a term of
ninety. And yet this sort of lottery is what my noble friend proposes to
establish. I know that we cannot altogether exclude chance. You have two
terms of copyright; one certain, the other uncertain; and we cannot, I
admit, get rid of the uncertain term. It is proper, no doubt, that an
author's copyright should last during his life. But, Sir, though we
cannot altogether exclude chance, we can very much diminish the share
which chance must have in distributing the recompense which we wish
to give to genius and learning. By every addition which we make to the
certain term we diminish the influence of chance; by every addition
which we make to the uncertain term we increase the influence of chance.
I shall make myself best understood by putting cases. Take two eminent
female writers, who died within our own memory, Madame D'Arblay and Miss
Austen. As the law now stands, Miss Austen's charming novels would have
only from twenty-eight to thirty-three years of copyright. For that
extraordinary woman died young: she died before her genius was fully
appreciated by the world. Madame D'Arblay outlived the whole generation
to which she belonged. The copyright of her celebrated novel, Evelina,
lasted, under the present law, sixty-two years. Surely this inequality
is sufficiently great--sixty-two years of copyright for Evelina, only
twenty-eight for Persuasion. But to my noble friend this inequality
seems not great enough. He proposes to add twenty-five years to Madame
D'Arblay's term, and not a single day to Miss Austen's term. He would
give to Persuasion a copyright of only twenty-eight years, as at
present, and to Evelina a copyright more than three times as long, a
copyright of eighty-seven years. Now, is this reasonable? See, on the
other hand, the operation of my plan. I make no addition at all to
Madame D'Arblay's term of sixty-two years, which is, in my opinion,
quite long enough; but I extend Miss Austen's term to forty-two years,
which is, in my opinion, not too much. You see, Sir, that at present
chance has too much sway in this matter: that at present the protection
which the State gives to letters is very unequally given. You see that
if my noble friend's plan be adopted, more will be left to chance than
under the present system, and you will have such inequalities as are
unknown under the present system. You see also that, under the system
which I recommend, we shall have, not perfect certainty, not perfect
equality, but much less uncertainty and inequality than at present.
But this is not all. My noble friend's plan is not merely to institute
a lottery in which some writers will draw prizes and some will draw
blanks. It is much worse than this. His lottery is so contrived that, in
the vast majority of cases, the blanks will fall to the best books, and
the prizes to books of inferior merit.
Take Shakspeare. My noble friend gives a longer protection than I should
give to Love's Labour's Lost, and Pericles, Prince of Tyre; but he gives
a shorter protection than I should give to Othello and Macbeth.
Take Milton. Milton died in 1674. The copyrights of Milton's great
works would, according to my noble friend's plan, expire in 1699. Comus
appeared in 1634, the Paradise Lost in 1668. To Comus, then, my noble
friend would give sixty-five years of copyright, and to the Paradise
Lost only thirty-one years. Is that reasonable? Comus is a noble
poem: but who would rank it with the Paradise Lost? My plan would give
forty-two years both to the Paradise Lost and to Comus.
Let us pass on from Milton to Dryden. My noble friend would give
more than sixty years of copyright to Dryden's worst works; to the
encomiastic verses on Oliver Cromwell, to the Wild Gallant, to the Rival
Ladies, to other wretched pieces as bad as anything written by Flecknoe
or Settle: but for Theodore and Honoria, for Tancred and Sigismunda, for
Cimon and Iphigenia, for Palamon and Arcite, for Alexander's Feast, my
noble friend thinks a copyright of twenty-eight years sufficient. Of
all Pope's works, that to which my noble friend would give the largest
measure of protection is the volume of Pastorals, remarkable only as the
production of a boy. Johnson's first work was a Translation of a Book of
Travels in Abyssinia, published in 1735. It was so poorly executed that
in his later years he did not like to hear it mentioned. Boswell once
picked up a copy of it, and told his friend that he had done so. "Do not
talk about it," said Johnson: "it is a thing to be forgotten." To this
performance my noble friend would give protection during the enormous
term of seventy-five years. To the Lives of the Poets he would give
protection during about thirty years. Well; take Henry Fielding; it
matters not whom I take, but take Fielding. His early works are read
only by the curious, and would not be read even by the curious, but for
the fame which he acquired in the latter part of his life by works of
a very different kind. What is the value of the Temple Beau, of the
Intriguing Chambermaid, of half a dozen other plays of which few
gentlemen have even heard the names? Yet to these worthless pieces my
noble friend would give a term of copyright longer by more than twenty
years than that which he would give to Tom Jones and Amelia.
Go on to Burke. His little tract, entitled the Vindication of Natural
Society is certainly not without merit; but it would not be remembered
in our days if it did not bear the name of Burke. To this tract my noble
friend would give a copyright of near seventy years. But to the great
work on the French Revolution, to the Appeal from the New to the Old
Whigs, to the letters on the Regicide Peace, he would give a copyright
of thirty years or little more.
And, Sir observe that I am not selecting here and there extraordinary
instances in order to make up the semblance of a case. I am taking the
greatest names of our literature in chronological order. Go to other
nations; go to remote ages; you will still find the general rule the
same. There was no copyright at Athens or Rome; but the history of the
Greek and Latin literature illustrates my argument quite as well as if
copyright had existed in ancient times. Of all the plays of Sophocles,
the one to which the plan of my noble friend would have given the
most scanty recompense would have been that wonderful masterpiece, the
Oedipus at Colonos. Who would class together the Speech of Demosthenes
against his Guardians, and the Speech for the Crown? My noble friend,
indeed, would not class them together. For to the Speech against the
Guardians he would give a copyright of near seventy years, and to the
incomparable Speech for the Crown a copyright of less than half that
length. Go to Rome. My noble friend would give more than twice as long a
term to Cicero's juvenile declamation in defence of Roscius Amerinus as
to the Second Philippic. Go to France. My noble friend would give a far
longer term to Racine's Freres Ennemis than to Athalie, and to Moliere's
Etourdi than to Tartuffe. Go to Spain. My noble friend would give a
longer term to forgotten works of Cervantes, works which nobody now
reads, than to Don Quixote. Go to Germany. According to my noble
friend's plan, of all the works of Schiller the Robbers would be the
most favoured: of all the works of Goethe, the Sorrows of Werter would
be the most favoured. I thank the Committee for listening so kindly to
this long enumeration. Gentlemen will perceive, I am sure, that it is
not from pedantry that I mention the names of so many books and authors.
But just as, in our debates on civil affairs, we constantly draw
illustrations from civil history, we must, in a debate about literary
property, draw our illustrations from literary history. Now, Sir, I
have, I think, shown from literary history that the effect of my
noble friend's plan would be to give to crude and imperfect works, to
third-rate and fourth-rate works, a great advantage over the highest
productions of genius. It is impossible to account for the facts which I
have laid before you by attributing them to mere accident. Their number
is too great, their character too uniform. We must seek for some other
explanation; and we shall easily find one.
It is the law of our nature that the mind shall attain its full power
by slow degrees; and this is especially true of the most vigorous minds.
Young men, no doubt, have often produced works of great merit; but it
would be impossible to name any writer of the first order whose juvenile
performances were his best. That all the most valuable books of history,
of philology, of physical and metaphysical science, of divinity, of
political economy, have been produced by men of mature years will hardly
be disputed. The case may not be quite so clear as respects works of
the imagination. And yet I know no work of the imagination of the very
highest class that was ever, in any age or country, produced by a
man under thirty-five. Whatever powers a youth may have received from
nature, it is impossible that his taste and judgment can be ripe, that
his mind can be richly stored with images, that he can have observed
the vicissitudes of life, that he can have studied the nicer shades of
character. How, as Marmontel very sensibly said, is a person to paint
portraits who has never seen faces? On the whole, I believe that I may,
without fear of contradiction, affirm this, that of the good books now
extant in the world more than nineteen-twentieths were published after
the writers had attained the age of forty. If this be so, it is evident
that the plan of my noble friend is framed on a vicious principle. For,
while he gives to juvenile productions a very much larger protection
than they now enjoy, he does comparatively little for the works of men
in the full maturity of their powers, and absolutely nothing for any
work which is published during the last three years of the life of the
writer. For, by the existing law, the copyright of such a work lasts
twenty-eight years from the publication; and my noble friend gives only
twenty-five years, to be reckoned from the writer's death.