International Copyright Part 2

In 1853 the question of a copyright convention with Great Britain was again under discussion, the measure being favored by Mr. Everett, at that time Secretary of State. Five of the leading publishing houses in New York addressed a letter to Mr. Everett in which, while favoring a convention, they advised--

1st. That the foreign author must be required to register the t.i.tle of his work in the United States before its publication abroad.

2d. That the work, to secure protection, must be issued in the United States within thirty days of its publication abroad; and

3d. That the reprint must be wholly manufactured in the United States.

Shortly afterwards Mr. Carey published his "Letters on International Copyright," in which he took the ground that the facts and ideas in a book are the common property of society, and that property in copyright is indefensible. In 1858 a bill was introduced into the House of Representatives by Mr. Morris, of Pennsylvania, providing for international copyright on the basis of an entire remanufacture of the foreign work and its reissue by an American publisher within thirty days of the publication abroad. The bill does not appear to have received any consideration.

In March, 1868, a circular letter headed "Justice to Authors and Artists," was issued by a Committee composed of G. P. Putnam, Dr. S.

I. Prime, Henry Ivison, James Parton, and Egbert Hazard, calling together a meeting for the consideration of the subject of international copyright. The meeting was held on the 9th of April, Mr.

Bryant presiding, and a society was organized under the t.i.tle of the "Copyright a.s.sociation for the Protection and Advancement of Literature and Art," of which Mr. Bryant was made president and E. C.

Stedman secretary. The primary object of the a.s.sociation was stated to be "to promote the enactment of a just and suitable international copyright law for the benefit of authors and artists in all parts of the world."

A memorial had been prepared by the above-mentioned Committee to be presented to Congress, which requested Congress to give its early attention to the pa.s.sage of a bill "to secure in all parts of the world the rights of authors," etc., but which made no recommendations as to the details of any measure. Of the 153 signatures attached to this memorial, 101 were those of authors, and 19 of publishers.

In the fall of 1868 Mr. J. D. Baldwin, member of Congress from Worcester, Ma.s.s., reported a bill that had been prepared with the co-operation of the Executive Committee of the Copyright a.s.sociation, which provided, That a foreign work could secure a copyright in this country provided it was wholly manufactured here and should be issued for sale by a publisher who was an American citizen. The benefit of the copyright was also limited to the author and his a.s.signs.

The bill was recommitted to the Joint Committee on the Library, and no action was taken upon it. The members of this Committee were Senators E. D. Morgan, of New York, Howe, of Wisconsin, and Fessenden, of Maine, who were opposed to the measure, and Representatives Baldwin, of Ma.s.sachusetts, Pruyn, of New York, and Spalding, of Ohio, who were in favor of it. The bill was also to have been supported in the House by Michael C. Kerr, of Indiana. Mr. Baldwin explains that an important cause for the shelving of the measure without debate was the impeachment of President Johnson, which was at that time absorbing the attention of Congress and the country. No general expression of opinion was therefore elicited upon the question from either Congress or the people, and in fact the question has never reached such a stage as to enable such an expression of public opinion to be arrived at.

It is my own belief that if the issue were fairly presented to them, the American people could be trusted to decide it honestly and wisely.

The active members of the committee of the Copyright a.s.sociation, under whose general suggestions this bill of Mr. Baldwin's had been framed, were Dr. S. Irenaeus Prime, George P. Putnam, and James Parton.

Dr. Prime published in _Putnam's Magazine_ in May, 1868, a paper on the "Right of Copyright," which remains perhaps the most concise and comprehensive statement of the principles governing the question, and which sets forth very clearly the necessary connection between Carey's denial of the right of property in books and Proudhon's claim that all property is robbery. In 1871 Mr. c.o.x of New York introduced a bill which was practically identical with Mr. Baldwin's measure, and which was also recommitted to the Library Committee. In 1872 the new Library Committee called upon the publishers and others interested to aid in framing a bill.

A meeting of the publishers was called in New York, which was attended by but one firm outside of New York; the majority of the firms present were in favor of the provisions of Mr. c.o.x's bill, already referred to. The report was dissented from by a large minority on the ground that the bill was in the interests of the publishers rather than that of the public; that the prohibition of the use of foreign stereotypes and electrotypes of ill.u.s.trations was an economic absurdity; and that an English publishing house could in any case, through an American partner, retain control of the American market. The report of the minority was prepared by Mr. Edward Seymour, of Scribner, Armstrong & Co. During the same week a bill was drafted by Mr. C. A. Bristed, representing more especially the views of the authors in the International Copyright a.s.sociation, which provided simply that "all rights of property secured to citizens of the United States by existing copyright laws are hereby secured to the citizens and subjects of every country the government of which secures reciprocal rights to the citizens of the United States." The same result as that aimed at in Mr. Bristed's bill would have been obtained by the adoption of the recommendation made by Mr. J. A. Morgan in his work on "The Law of Literature," published in 1876. He suggested that the present copyright law be amended by simply inserting the word "person"

in place of "citizen," in which case its privileges would at once be secured to any authors, of whatever nationality, who complied with its requirements.

A few weeks later the meeting was held in Philadelphia whose resolutions in opposition to international copyright (which, as we have shown, were equally forcible against any copyright) we have already quoted.

These four reports were submitted to the Library Committee of Congress, together with one or two individual measures, of which the most noteworthy were those of Harper & Bros., and of John P. Morton, bookseller, of Louisville.

Messrs. Harper, in a letter presented by their counsel, objected to any measure of international copyright on the broad ground that it would "add to the price of books and interfere with the education of the people." This consideration is of course open to the same criticism as the Philadelphia platform; it is equally forcible against any copyright whatever. As Thomas Hood says, "cheap _bread_ is as desirable and necessary as cheap books," but one does not on that ground appropriate the farmer's wheat-stacks!

Mr. Morton was in favor of an arrangement that should give to any dealer the privilege of reprinting a foreign work, provided he would contract to pay to the author or his representative 10 per cent of the wholesale price of such work. He advised also that the American market should be left open to the foreign edition, so that the compet.i.tion should be perfectly unrestricted.

The proposition that all dealers who would contract to pay to the author a royalty (to be fixed by law) should be at liberty to undertake the publication of a work was at a later date presented to the British Commission by Mr. Farrer and Sir Henry Holland, first with reference to home copyright, and secondly as a suggestion for an international arrangement. In this last shape the writer had the opportunity, in 1876, of presenting to the Commission some considerations against it. These will be referred to further on.

A similar suggestion formed the basis of a measure submitted in 1872 by Mr. Elderkin, of New York, to the Library Committee of Congress, and known afterwards as the Sherman Bill.

In view of the wide diversity of the plans and suggestions presented to this Committee, there was certainly some ground for the statement made in his report by the chairman, Senator Lot M. Morrill, of Maine, that "there was no unanimity of opinion among those interested in the measure." He maintained, further, that an international copyright was not called for by reasons of general equity or of const.i.tutional law; that the adoption of any plan which had been proposed would be of very doubtful advantage to American authors, and would not only be an unquestionable and permanent injury to the interests engaged in the manufacture of books, but a hindrance to the diffusion of knowledge among the people, and to the cause of American education.

This report closed for the time the consideration of the subject.

The efforts in behalf of international copyright have been always more or less hampered by the question being confused with that of a protective tariff.

The strongest opposition to a copyright measure has as a rule come from the protectionists. Richard Grant White said in 1868: "The refusal of copyright in the United States to British authors is in fact, though it is not so avowed, a part of the 'American' protective system." And again: "With free trade we shall have just international copyright."

It would be difficult, however, for the protectionists to show logical grounds for their position. American authors are manufacturers, who are simply asking, first, that they shall not be undersold in their home market by goods imported from abroad on which no (ownership) duty has been paid,--which have, namely, been simply "appropriated;" and secondly, that the government may facilitate their efforts to secure a sale for their own goods in foreign markets. These are claims with which a protectionist who is interested in developing American industry ought certainly to be in sympathy.

The contingency that troubles him, however, is the possibility that, if the English author is given the right to sell his books in this country the copies sold may be to a greater or less extent manufactured in England, and the business of making these copies may be lost to American printers, binders, and paper men. He is namely, much more concerned for the protection of the makers of the _material casing_ of the book than for that of the author who creates its essential substance.

It is evidently to the advantage of the consumer, upon whose interests the Philadelphia resolutions laid so much stress, that the labor of preparing the editions of his books be economized as much as possible.

The princ.i.p.al portion of the cost of a first edition of a book is the setting of the type, or, if the work is ill.u.s.trated, in the setting of the type and the designing and engraving of the ill.u.s.trations.

If this first cost of stereotyping and engraving can be divided among several editions, say one for Great Britain, one for the United States, and one for Canada and the other colonies, it is evident that the proportion to be charged to each copy printed is less, and that the selling price per copy can be smaller, than would be the case if this first cost has got to be repeated in full for each market.

It is then to the advantage of the consumer that, whatever copyright arrangement be made, nothing shall stand in the way of foreign stereotypes and ill.u.s.trations being duplicated for use here whenever the foreign edition is in such shape as to render this duplicating an advantage and a saving in cost.

The few protectionists who have expressed themselves in favor of an international copyright measure, and some others who have fears as to our publishing interests being able to hold their own against any open compet.i.tion, insist upon the condition that foreign works to obtain copyright must be wholly remanufactured and republished in this country.

We have shown how such a condition would, in the majority of cases, be contrary to the interests of the American consumer, while the British author is naturally opposed to it because, in increasing materially the outlay to be incurred by the American publisher in the production of his edition, it proportionately diminishes the profits or prospects of profits from which is calculated the remuneration that can be paid to the author.

The measure of permitting the foreign book to be reprinted by all dealers who would contract to pay the author a specified royalty has at first sight something specious and plausible about it. It seems to be in harmony with the principles of freedom of trade, in which we are believers. It is, however, directly opposed to those principles; first, it impairs the freedom of contract, preventing the producer from making such arrangements for supplying the public as seem best to him; and secondly, it undertakes, by paternal legislation, to fix the remuneration that shall be given to the producer for his work, and to limit the prices at which this work shall be furnished to the consumer. There is no more equity in the government's undertaking this limitation of the producer and protection of the consumer in the case of _books_ than there would be in that of bread or of beef.

Further, such an arrangement would be of benefit to neither the author, the public, nor the publishers, and would, we believe, make of international copyright, and of any copyright, a confusing and futile absurdity.

A British author could hardly obtain much satisfaction from an arrangement which, while preventing him from having his American business in the hands of a publishing house selected by himself, and of whose responsibility he could a.s.sure himself, threw open the use of his property to any dealers who might choose to scramble for it. He could exercise no control over the style, the shape, or the accuracy of his American editions; could have no trustworthy information as to the number of copies the various editions contained; and if he were tenacious as to the collection of the royalties to which he was ent.i.tled, he would be able in many cases to enforce his claims only through innumerable lawsuits, and he would find the expenses of the collection exceed the receipts.

The benefit to the public would be no more apparent. Any gain in the cheapness of the editions produced would be more than offset by their unsatisfactoriness: they would, in the majority of cases, be untrustworthy as to accuracy or completeness, and be hastily and flimsily manufactured. A great many enterprises, also, desirable in themselves, and that would be of service to the public, no publisher could, under such an arrangement, afford to undertake at all, as, if they proved successful, unscrupulous neighbors would, through rival editions, reap the benefit of his judgment and his advertising. In fact, the business of reprinting would fall largely into the hands of irresponsible parties, from whom no copyright could be collected.

The arguments against a measure of this kind are, in short, the arguments in favor of international copyright. A very conclusive statement of the case against the equity or desirability from any point of view of such an arrangement in regard to home copyright was made before the British Commission, in 1877, by Herbert Spencer. His testimony is given in full in the _Popular Science Monthly_ for November, 1878, and February, 1879.

The recommendation had been made that, for the sake of securing cheap books for the people, the law should give to all dealers the privilege of printing an author's books, and should fix a copyright to be paid to the author that should secure him a "fair profit for his work." Mr.

Spencer objected that--

First. This would be a direct interference with the laws of trade, under which the author had the right to make his own bargains. Second.

No legislature was competent to determine what was "a fair rate of profit" for an author. Third. No average royalty could be determined which could give a fair recompense for the different amounts and kinds of labor given to the production of different cla.s.ses of books.

Fourth. If the legislature has the right to fix the profits of the author, it has an equal right to determine that of his a.s.sociate in the publication, the publisher; and if of the publisher, then also of the printer, binder, and paper-maker, who all have an interest in the undertaking. Such a right of control would apply with equal force to manufacturers of other articles of importance to the community, and would not be in accordance with the present theories of the proper functions of government. Fifth. If books are to be cheapened by such a measure, it must be at the expense of some portion of the profits now going to the authors and publishers; the a.s.sumption is that book producers and distributors do not understand their business, but require to be instructed by the state how to carry it on, and that the publishing business alone needs to have its returns regulated by law.

Sixth. The prices of the best books would in many cases, instead of being lessened, be higher than at present, because the publishers would require some insurance against the risk of rival editions, and because they would make their first editions smaller, and the first cost would have to be divided among a less number of copies. Such reductions of prices as would be made would be on the flimsier and more popular literature, and even on this could not be lasting.

Seventh. For the enterprises of the most lasting importance to the public, requiring considerable investment of time and capital, the publishers require to be a.s.sured of returns from the largest market possible, and without such security enterprises of this character could not be undertaken at all. Eighth. Open compet.i.tion of this kind would, in the end, result in crushing out the smaller publishers, and in concentrating the business in the hands of a few houses whose purses had been long enough to carry them through the long and unprofitable contests that would certainly be the first effect of such legislation.

All the considerations adduced by Mr. Spencer have, of course, equal force with reference to open international publishing, while they may also be included among the arguments in behalf of international copyright.

With these views of a veteran writer of books may very properly be a.s.sociated the opinions of the experienced publisher, Mr. Wm. H.

Appleton, who, in a letter to the New York _Times_ in 1872, says:

"The first demand of property is for security.... To publish a book in any real sense--that is, not merely to print it, but to make it well and widely known--requires much effort and large expenditure, and these will not be invested in a property which is liable to be destroyed at any moment. Legal protection would thus put an end to evil practices, make property secure, business more legitimate, and give a new vigor to enterprise. Nor can a policy which is unjust to the author, and works viciously in the trade, be the best for the public. The publisher can neither afford to make the book so thoroughly known, nor can he put it at so low a price, as if he could count upon permanent and undisturbed possession of it. Many valuable books are not reprinted at all, and therefere are only to be had at English prices, for the same reason that publishers are cautious about risking their capital in unprotected property."

The copy-book motto, "Honesty is the best policy," fails often enough to come true (at least as to material results) in the case of the individual, simply because his life is not always long enough to give an opportunity for all the results of his actions to be arrived at.

The community, however, in its longer life, is subject to the full influence of the certain though sometimes slow-working relations of cause to effect, relations which, among other things, bring out the essential connection between economics and ethics, and which show in the long-run the just method to be the wise method. An enlightened self-interest finds out the advantage of equity. If the teaching of history makes anything evident, it is that in the transactions of a nation, honesty _pays_, even in the narrowest and most selfish sense of the term, and nothing but honesty can ever pay. Among the many cla.s.ses of interests to which this applies international copyright certainly belongs.

Rejecting the Elderkin-Sherman suggestion of an open market for republishing as in no way effecting the objects desired; the Baldwin-c.o.x plan of giving protection only to books of which the type had been set and the printing done in this country, as narrow in principle and uneconomic in practice; and the Bristed-Morgan proposition to extend the right of copyright without limitation or restriction, as not giving sufficient consideration to the business requirements, and as at present impracticable to carry into effect--we would recommend a measure based upon the suggestion of the British Commission, coupled with one or two of the provisions that have been included in the several American schemes:

1. That the t.i.tle of the foreign work be registered in the United States simultaneously with its publication abroad.

2. That the work be republished in the United States within six months of its publication abroad.