PART VI

BUSINESS RELATIONS AND LITERATURE

XXII. BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER 430-452

Copyrights in business relations, 430--German publishing law of 1901, 430--The publisher as merchant, 434--"Outright" transfer, 434--"Joint adventure," 435--Risk and profit, 435--Long price and "net" price, 436--Equities, 436--The literary agent, 436--Usual American contract, 437--Publishers' obligations, 437--Reversion of contract, 438--Scope of contract, 438--Other works of author, 439--Standard contract, 439--Serial rights, 439--Republication of periodical articles, 440--Foreign markets, 440--Contract to do work, 440--Contract not to write, 441--Implied obligations, 442--Contract personal and mutual, 442--Author's transfer to other publishers, 445--Proprietary name, 445--Copies remaining unsold, 446--Renewal term, 447--License not assignment, 447--Author's and publisher's profits, 447--The publisher's share, 448--"Author's editions," 449--Printer's lien, 449--Compulsory license system, 449--License payments, 450--Saving through single publisher, 451--Copyrights in bankruptcy, 451--Copyrights in taxation, 452.

XXIII. THE LITERATURE OF COPYRIGHT 453-462

Bibliographical materials, 453--Early history, 453--Early American contributions, 454--Later American pamphleteers, 454--American treatises, 455--Copyright Office publications, 455--Labor report, 456--English contributions about 1840, 456--Later English contributions, 457--English legal treatises, 457--Birrell's lectures, 458--MacGillivray's works, 458--English special treatises, 459--Parliamentary and Commission reports, 459--Cyclopaedias and digests, 460--French works, 460--German works, 460--Italian works, 461--Spanish compendium, 461--International compilations, 462.

APPENDIX

I. UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS 465-516 1. United States Copyright Code of 1909, 465. 2. President's Proclamations, 489. 3. United States Supreme Court Rules, 491. 4. United States Copyright Office Regulations, 495. Application for copyright, with affidavit form, 511. 5. U. S. Treasury and Post Office Regulations, 513.

II. BRITISH EMPIRE: COPYRIGHT PROVISIONS 517-602 6. British Copyright Act, 1911, 517. 6_a_. Fine Arts Copyright Act, 1862, 548. 6_b_. Musical (Summary Proceedings) Copyright Act, 1902, 550. 6_c_. Musical Copyright Act, 1906, 552. 7. Canadian Copyright Measure, 1911, 555. 8. Australian Copyright Act, 1905, 580.

III. INTERNATIONAL COPYRIGHT UNION: CONVENTIONS 603-632 9. Berne-Paris Conventions, 1886, 1896, 603. 10. Berlin Convention, 1908, 603.

IV. PAN AMERICAN UNION: CONVENTIONS 633-652 11. Montevideo Convention, 1889, 633. 12. Mexico City Convention, 1902, 637. 13. Rio de Janeiro Convention, 1906, 642. 14. Buenos Aires Convention, 1910, 649.

CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN 653-675

INDEX 677-709

CONSPECTUS OF COPYRIGHT BY COUNTRIES _precedes_ CONTENTS

COPYRIGHT

ITS HISTORY AND ITS LAW

I

THE NATURE AND ORIGIN OF COPYRIGHT

{Sidenote: Copyright, meaning}

Copyright (from the Latin _copia_, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.

There is another legal sense of the word "copyright" much emphasized by several English justices. Through the low Latin use of the word _copia_, our word "copy" has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the "copy" set in his copy-book, and the modern printer calls for the author's "copy."

{Sidenote: Its two senses}

Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards in the case of Jefferys v. Boosey in 1854: "When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to that composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing." Baron Parke, in the same case, pointed out expressly these two different legal senses of the word copyright, the right _in_ copy, a right of possession, always fully protected by the common law, and the right _to_ copy, a right of multiplication, which alone has been the subject of special statutory protection.

{Sidenote: Blackstone}

Blackstone in his Commentaries of 1767, in which the word copyright seems to have been first used, lays down the fundamental principles of copyright as follows: "When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may, perhaps, be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway."

{Sidenote: Property by creation}

There is nothing which may more rightfully be called property than the creation of the individual brain. For property (from the Latin _proprius_, own) means a man's very _own_, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of _own_-ership is that if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual thinking it had put it aside without such record, it would not, in any practical sense, exist. We cannot know what "might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity thus to materialize their thoughts.

{Sidenote: Are thoughts created?}

It is sometimes said, as a bar to this idea of property, that no thought is new--that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him,--a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy--aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land, Farmer Smith can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado," though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, _in propria persona_, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

{Sidenote: Property in unpublished works}

Property right in unpublished works has never been effectively questioned--a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has "supreme control" over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent. "If he lends a copy to another," says Baron Parke, "his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it, he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

{Sidenote: The question of publication}

It is at the moment of publication that the undisputed possessory right passes over into the much disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use--that is, get beneficial results from--his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain "an implied undertaking" that the buyer has liberty to use his copy, but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass, to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

{Sidenote: Inherent right}

The inherent right of authors is a right at what is called common law--that is, natural or customary law. The common law, says Kent, "includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." "The common law or _lex non scripta_," says Blackstone, "depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary." So far as concerns the undisputed rights before publication, the copyright laws are auxiliary merely to common law. Rights exist before remedies; remedies are merely invented to enforce rights. "The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger in his standard English work on "The law of copyright," "is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein."

{Sidenote: Statutory penalties}

After the invention of printing it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became, therefore, the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.

{Sidenote: Statute of Anne}

{Sidenote: Supersedure of common law right}

These laws, covering naturally only the country of the author, and specifying a time during which the penalties could be enforced, and providing means of registration by which authors could register their property rights, as the title to a house is registered when it is sold, had an unexpected result. The statute of Anne, which is the foundation of present English copyright law, intended to protect authors' rights by providing penalties against their violation, had the effect of limiting those rights. It was doubtless the intention of those who framed the statute of Anne to establish, for the benefit of authors, specific means of redress. Overlooking apparently the fact that law and equity, as their principles were then established, enabled authors to use the same means of redress, so far as they held good, which persons suffering wrongs as to other property had, the law was so drawn that in 1774 the English House of Lords (against, however, the weight of one half of English judicial opinion) decided that, instead of giving additional sanction to a formerly existing right, the statute of Anne had substituted a new and lesser right to the exclusion of what the majority of English judges held to have been an old and greater right. Literary and like property to this extent lost the character of copy-_right_, and became the subject of copy-_privilege_, depending on legal enactment for the security of the private owner. American courts, wont to follow English precedent, have rather taken for granted this view of the law of literary property, and our Constitution, in authorizing Congress to secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries," was evidently drawn from the same point of view, though it does not in itself deny or withdraw the natural rights of the author at common law.

II

THE EARLY HISTORY OF COPYRIGHT

{Sidenote: In classic times}

Our traditions of the blind Homer, singing his Iliad in the multitudinous places of his protean nativity, do not vouchsafe us any information as to the _status_ of authors in his day. There seems indeed to be no indication of author's rights or literary property in Greek or earlier literatures. But there is mention in Roman literature of the sale of playright by the dramatic authors, as Terence; and Rome had booksellers who sold copies of poems written out by slaves, and who seem to have been protected by some kind of "courtesy of the trade," since Martial names certain booksellers who had specific poems of his for sale. Horace complains that the Sosius brothers, his publishers, got gold while he got only fame--but this may have been a classic "author's grumble." Cicero in his letters indicates that there was some notion of literary property, and it is probable that some kind of payment was made to authors.

{Sidenote: Roman law}

The Roman jurist Gaius, probably of the second century, held that where an artist had painted upon a _tabula_, his was the superior right. And this opinion was adopted by Tribonian, chief editor of the code of Justinian, in the sixth century, and was applied in a modern question in respect to John Leech's drawings upon wood.

{Sidenote: Monastic copyists}

{Sidenote: St. Columba and Finnian}

In the early Christian centuries, the monasteries became the seats of learning, and the _scriptorium_ or writing room, in connection with the _librarium_ or _armarium_,--the armory in which the weapons of the faith were kept,--was the work-shop of the monkish copyists, sometimes working as a publishing staff under the direction of the _librarius_ or _armarius_ as chief scribe. The first record of a copyright case is that of Finnian _v_. Columba in 567, chronicled by Adamnan fifty years later and cited by Montalembert in "The monks of the West." St. Columba, in his pre-saintly days, surreptitiously made a copy of a psalter in possession of his teacher Finnian, and the copy was reclaimed, so the tradition relates, under the decision of King Dermott, in the Halls of Tara: "To every cow her calf." The authenticity of the tradition is questioned by other writers, but the phrase gives the pith of the common law doctrine of literary property and indicates that in those early centuries there was a sense of copyright. Monks from other monasteries came to a noted _scriptorium_ where a specially authentic or valuable manuscript could be copied, and the privilege of copying sometimes became the basis of an exchange of copies or of a commercial charge. Finally different texts of the same work were compared to obtain a certain or standard text, and the multiplication of such copies became the basis of a publishing and bookselling trade, in secular as well as sacerdotal hands, the development of which is traced in detail by George Haven Putnam in "Books and their makers in the Middle Ages."

{Sidenote: University protection}

This development is illustrated in the statutes of 1223 of the University of Paris, providing that the "booksellers of the University" should produce duplicate copies of the texts authorized for the use of the University, and there is indication that payment was made by the University to scholars for the annotation and proof-reading of such texts. In fact, there existed in France in those days a kind of guild of _libraires jures_ or legalized booksellers, under regulation of the University, as a body of publishers and writers having jurisdiction over the copying and censorship of manuscripts. "Letters of patent" of Charles V, 1368, specified fourteen _libraires_ and eleven _ecrivains_ as registered in Paris, and four chief _libraires_ had jurisdiction over the calling of the _librarius_ and the _stationarius_. The certificate of the correctness of a copy, and perhaps of the right to copy or sell it, may be considered the primitive form of copyright certificate.

{Sidenote: Invention of printing}

The invention of printing, prior to 1450, made protection of literary property a question of rapidly increasing importance. The new art raised, of course, many new questions wherever the guardians of the law were set to their chronic task of applying old ideas of right to new conditions. The earliest copyright certificate, if it may be so called, in a printed book was that in the reissue of the tractate of Peter Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon certified the correctness of the copy and his approval. At first "privileges" were granted chiefly to printers, for the reproduction of classic or patristic works, but possibly in some cases as the representatives of living writers; and there are early instances of direct grants to authors, the earliest known being in 1486 in Venice to Sabellico.

{Sidenote: In Germany}

In Germany, the cradle of the art of printing, whence come the earliest _incunabula_ or cradle-books, printing privileges were developed some decades later than in Italy. Koberger, the early Nuremberg printer, whose imprint dates back to 1473, relied rather on the "courtesy of the trade," and indeed made an agreement in 1495 with Kessler of Basel to respect each other's rights. Yet a suit brought in 1480 by Schoeffer, who with Fust had established the first publishing and bookselling business, brought in connection with Fust's heirs against Inkus of Frankfort for the infringement of property rights in certain books, and the issue of a preliminary injunction by a court at Basel, indicated some definite legal _status_.

The first recorded privilege in Germany was issued by the imperial Aulic Council in 1501, to the Rhenish Celtic Sodalitas for the printing of dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as prepared by Celtes of Nuremberg. The imperial privilege covered only the imperial domain, and Celtes in the same year obtained a similar privilege from the magistracy of Frankfort, then the seat of the book-fair, organized there about 1500, afterwards superseded by that at Leipzig. Later, imperial privileges were issued by the Imperial Chancellor in the name of the Emperor, as one in 1510 to the printer Johann Schott of the "_Lectura aurea_." In 1512 Maximilian I granted to the historiographer Johann Stab in Lintz a privilege covering "all works" which he "might cause to be printed," under which he issued licenses on particular books for ten years or less. This grant, however, some authorities consider not a privilege or copyright, but an authorization to license, possibly similar to that which had been granted in 1455 by Frederick III and confirmed later by Maximilian I to Dr. Jacob Oessler at Strasburg, perhaps the earliest centre of printing and bookselling, as imperial supervisor of literature and superintendent of printing. In 1512 also, copies or imitations or engravings by Albert Duerer, with forged signature, were ordered confiscated by the magistrates of Nuremberg, though perhaps on grounds of fraud rather than of copyright. But in 1528 Duerer's widow obtained from the Nuremberg authorities exclusive privilege for his works, and in that year the magistrates went so far in protecting Duerer's "Proportion" as to restrain another work of the same title and subject, presumably though mistakenly inferred to be an adaptation or imitation, until after the completion and sale of the original work. In 1532 reengravings of some of Duerer's works were restrained, and when a Latin edition of his "Perspective," printed in Paris, found its way to Nuremberg, the magistrates called the booksellers together, warned them against keeping or selling the unauthorized edition, and sent letters to the magistracy of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action. Luther in his reforming zeal was the first protestant against authors' wrongs, and in a letter of 1528 complained that "there are many now busying themselves with the spoiling of books through misprinting them," and pleaded for legislation to protect literary producers. In 1531 the city council of Basel enjoined all booksellers from reprinting the books of each other for three years from publication under penalty of one hundred gulden, which illustrates the nature of local legislation, privileging printers as well as other guilds within a city. The protection was usually for short terms and sometimes covered the subject as well as the book, as indicated in the Duerer case.

The coordinate jurisdiction of imperial and local authority continued into the seventeenth century, and besides a special protection of official publications, including church texts and school books, there developed a differentiation between privileged books and protected authors. The imperial city of Frankfort in 1660 passed an ordinance for the protection of "_buecher_" and "_autores_" and an imperial patent of 1685 made the curious distinction between "privileged" and "unprivileged" works, which Puetter, reputed the German apostle of the modern theory of property in literary productions, writing in 1764, explains as meaning respectively "non-individual" and "individual" (_eigenthuemlich_) works, the former those issued under printers' privileges, the latter the works of contemporary authors, copyrightable in our modern sense. At the close of the seventeenth century, the book-fair at Leipzig began to assume dominating importance, and the privileges from the Commission of the Elector of Saxony became more authoritative, perhaps, than the imperial privileges issued from Frankfort.

{Sidenote: In Italy: Venice}

Venice, among whose chief glories were to be the master printers Aldus, was the first and foremost of the Italian states to encourage the new art. The first privilege granted by her Senate, in 1469, indeed ante-dated the first in Germany by thirty-two years, the first in France by thirty-four years, and the first in England by forty-nine years. This was to John of Speyer, a German printer, for a monopoly for printing in Venice for five years, with prohibition of importation of works printed elsewhere, which he did not live to enjoy. The first known author's copyright was granted September 1, 1486, to Antonio Sabellico, historian to the Republic, of the sole right to publish or authorize the publication of his "Decade of Venetian affairs," not limited in time, with a penalty of five hundred ducats for infringement. In 1491 the Senate gave to the publicist Peter of Ravenna and the publisher of his choice the sole right, without mention of term, to print and sell his "Phoenix," usually cited as the first instance of copyright. In 1493 one Barbaro was granted a privilege for ten years in the work of his deceased brother, and in the same year an editor's copyright was granted to Joannes Nigro for his edition of "Haliabas," his application being accompanied by a certificate from learned doctors of Padua of its value for the community, and a publisher's copyright to Benaliis on Giustiniani's "Origin of the city of Venice," both apparently without term. In 1494 a privilege to Codeca contained the condition of fair price, and another privilege required publication within a year or at the rate of a folio a day. In 1496 Aldus himself was given the privilege for twenty years of printing any Greek texts, and in 1501, another for ten years of printing in cursive or italic characters, an invention of his own modeled on the handwriting of Boccaccio, a _quasi_ patent right; and rights for other languages were granted to other printers.

From 1505 renewals were granted for good cause, as in 1508 to Crasso for his edition of the works of Polifilo, because the wars had prevented due return. The privilege dated sometimes from application, sometimes from publication, and varied in term from one year up, averaging perhaps ten years at the beginning and twenty years toward the close of the sixteenth century. Many of the privileges were conditioned on printing within Venice. Copyright to authors became frequent, as in 1515 on his "Orlando" for his lifetime, to Ariosto, on whose poems an extra term for ten years was granted, in 1535, to his heirs. In 1521 Castellazzo obtained a copyright for his engravings illustrating the Pentateuch and for others which he had in plan; and many musical works were also copyrighted.

It will be seen that before or early in the sixteenth century most of the copyright conditions of later legislation, even in the American code of 1909, had been prophesied in Venice. But the privileges had become so complicated and perplexing that in 1517 the Venetian Senate abolished all printing privileges previously granted and decreed that privileges should thereafter be granted only by two-thirds vote and for a new work (_opus novum_) "never published before," or works hitherto unprivileged. This attempt at reform proved inadequate and indefinite, and in 1533 the first real copyright code was decreed, under which printing was required within Venice, and publication within a year--later modified for larger works to a folio a day. No publisher could apply twice for the same copyright, and a maximum price was fixed from an advance copy by the Bureau of Arts and Industries. Under the restriction of competition, Venetian printers, once the best in the world, fell into "the ruinous and disgraceful practice," according to a decree of 1537, "for the sake of gain" of using "vile paper that would not hold the ink" or permit marginal notes; and the use of good paper that could be written upon without blotting was required, except for works priced under 10 soldi, on penalty of forfeiture of copyright and a fine of 100 ducats. Under the earlier privileges publishers had printed books without consent of the authors or against their will, but in 1545 it was decreed that no copyright should issue unless documentary evidence of the consent of the author or his representatives had been submitted to the Rifformatori, the commission from the University of Padua, appointed the year before as censors upon non-theological works, not covered by the ecclesiastical censors.

A decree in 1548 established a guild of printers and publishers, antedating the charter granted by Queen Mary to the Stationers' Company in London, though later than the organization of the book-fair of Frankfort and of the _libraires jures_ in France; and its regulations, aiding the censorship, incidentally defined literary property and protected copyrights.

About 1566 there was a provision that works should be registered before publication without charge, and a complete registry of published works was kept in Venice. In 1569 as many as 117 copyright entries were made in Venice, and so few, after the plague years, as seven in 1599. Only two applications are recorded as refused by the Senate. The one recorded instance of punishment for piracy was that on the work of Pappa Alesio of Corfu, wherein the infringer was fined 200 ducats, besides ten ducats for each unauthorized copy printed, and was forbidden to print for ten years.

About 1600 the exodus of printers from Venice was checked by legislation, and in 1603 an elaborate decree provided copyright for twenty years on books first published in Venice, for ten years on books first published in Italy but registered in Venice, or on books not printed in Venice within the previous twenty years, and for five years on books not printed within ten years previous, and also a fine of twenty-five ducats for the false use of "Venetia" in the imprint. Later, as is evidenced by complaints in 1671, deposit copies were required for the libraries of St. Mark and of Padua. By the close of the seventeenth century the provisions for copyright in Venice had become so complicated, according to Putnam, following Brown's historical study of "The Venetian printing press," as to require the following processes, most of them involving a fee: "_testamur_ from the ducal secretary; certificate from the Rifformatori of the University of Padua; _imprimatur_ from the Chiefs of the Ten; revision by the Superintendent of the Press; revision by the public proof-reader; collation of the original text with the text as printed, by the secretary to the Rifformatori; certificate from the librarian of St. Mark that a copy had been deposited in the library; examination by experts appointed by the Proveditori to establish the market price of the book."

{Sidenote: Florence}

Florence was second only to Venice in the production of books and the protection of authors, and the records of Florentine printing show that in the sixteenth century international privileges were sought and obtained. Thus the printer of a Florentine edition of the Pandects, in 1553, obtained privileges also in Spain, France and the two Sicilies, possibly through a Papal grant.

{Sidenote: Control by the Church}

By 1515, under Leo X, patron of art and letters, the Holy See had asserted its jurisdiction over copyrights and privileges, not only in its own territory, but throughout Italy and Germany, and elsewhere, under pain of spiritual punishments. Fra Felice of Prato, a converted Jew, had obtained from the Pope a privilege for certain Hebrew works valid throughout all Europe, the denial or infringement of which was punishable by excommunication; but he took the precaution to obtain a privilege also from the Venetian authorities. There is other evidence of a compromise policy involving approval from the Church before a secular privilege was granted, especially of theological works. Throughout Catholic countries the _index expurgatorius_ banned for the most part the printing of forbidden books; and this made Holland later the chief centre of printing, since the placing of a work in the _index_ invited prompt reprint by Dutch publishers. It was perhaps a survival of a requirement for deposit of such books that Holland so long remained the only nation in Europe conditioning copyright on deposit of a copy printed within the country.

{Sidenote: In France}

In France, after the invention of printing, the functions of the _libraires jures_, under the authority given by the King through the University of Paris, naturally came to include books, and this relation was continued until the Revolution of 1789. Copyrights throughout this period seem to have been in perpetuity. At the beginning of the fifteenth century, in the times of Louis XII, "letters of the King" forbade booksellers, printers and other persons to "introduce foreign impressions" of the books to which such letters were appended. They were usually issued to printers. In 1537, under Francis I, a work had first to secure "the King's approval given through the royal librarian," a copy must be deposited in the library of the royal chateau of Blois, and the selling of foreign works was permitted only after approval as worthy of a place in the royal library,--but for these last the library was to pay the usual price. In 1556 a general ordinance of Henry II defined literary property, and publication of condemned books was declared treason. In 1566 the "Ordinance de Moulins" of Charles IX made further definition; and letters patent of Henry III, in 1576, referred back to these earlier ordinances. Infringement of such privileges was punished with especial severity in France, for, as quoted by Lowndes, such conduct was thought "worse than to enter a neighbor's house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of copyright, it was stealing a thing confided to the public honor." Louis XIV in 1682 visited it with corporal punishment, and for a second offence decreed in 1686 also that the offender should be forever disabled from exercising his trade of bookseller or printer.

Copyrights continued in perpetuity until all royal privileges were abolished in 1789 by the National Assembly, after which in July, 1793, a general copyright law was passed, granting copyright to an author for his life and to his heirs for ten years thereafter.

{Sidenote: In England}

In England, a Royal Printer was appointed in 1504, and to his successor, Richard Pynson, in 1518, the first printing "privilege" was issued, in the form of a prohibition for two years of the printing by any other person of a certain speech to which this first English copyright notice was appended. Bishop Fell, in his memoirs on the state of printing in the University of Oxford, states that this University had been granted certain exclusive privileges of transcribing and multiplying books by means of writing; and Lowndes in his early "Historical sketch of the law of copyright," published in 1840 and 1842, cites many early privileges, most commonly for seven years, granted after the invention of printing.

An early enactment of Richard III, in 1483, had encouraged the circulation of books by exempting from certain restraints on aliens "any artificer, or merchant stranger, of what nation or country he be, for bringing into this realm, or selling by retail or otherwise, any books written or printed, or for inhabiting within this said realm for the same intent, or any scrivener, alluminor, reader, or printer of such books." But fifty years later, under Henry VIII, this exemption was repealed by an act, "for printers and binders of books," which provided that no persons "resident or inhabitant within this realm shall buy to sell again, any printed books brought from any parts out of the King's obeysance, ready bound in boards, leather, or parchment," or buy "of any stranger born out of the King's obedience, other than of denizens, any manner of printed books brought from any parties beyond the sea, except only by engross, and not by retail"--the buyer to be punished by a fine, of which a moiety was to go to the informer. The act also contained provisions to "reform and redress," through the Chancery judges with "twelve honest and discreet persons," "too high and unreasonable prices."

{Sidenote: Book restriction}

The quaint preamble of this act of 1533 sets forth as its "whereas," in reference to the act of Richard III, that "there hath come to this realm sithen the making of the same, a marvelous number of printed books, and daily doth; and the cause of the making of the same provision seemeth to be, for that there were but few books, and few printers within this realm at that time, which could well exercise and occupy the said science and craft of printing; nevertheless, sithen the making of the said provision, many of this realm, being the King's natural subjects, have given them so diligently to learn and exercise the said craft of printing, that at this day there be within this realm a great number cunning and expert in the said science or craft of printing, as able to exercise the said craft in all points, as any stranger in any other realm or country; and furthermore, where there be a great number of the King's subjects within this realm, which live by the craft and mystery of binding of books, and that there be a great multitude well expert in the same, yet all this notwithstanding, there are divers persons that bring from beyond the sea great plenty of printed books, not only in the Latin tongue, but also in our maternal English tongue, some bound in boards, some in leather, and some in parchment, and them sell by retail, whereby many of the King's subjects, being binders of books, and having no other faculty wherewith to get their living, be destitute of work and like to be undone, except some reformation herein be had." This is interesting in connection with the American manufacturing clause.

{Sidenote: Early English protection}

Henry VIII granted many printing privileges, and in 1530 the first English copyright to an author was issued to John Palsgrave, who, having prepared a French grammar at his own expense, received a privilege for seven years. In 1533 appeared the first complaint of piracy, that of Wynken de Worde, who obtained the King's privilege for his second edition of Witinton's Grammar, because Peter Trevers had reprinted it from the edition of 1523. Up to the middle of the sixteenth century copyrights were in form printers' licenses, and even in the case cited Palsgrave seems to have been recognized rather because he published his own book than because he wrote it.

{Sidenote: The Stationers' Company}

The Stationers' Company, created by Henry VIII and chartered under Queen Mary in 1556, though the development of an earlier guild dating from 1403, was in part a device to prevent seditious printing, by prohibiting any printing in England except by those registered in its membership. In 1558, under a second charter, its by-laws provided that every one who printed a book should register it and pay a fee, and those who failed to do this, or who printed another member's book, were to be fined. In 1562 licenses were declared void "if any other has a right," and in 1573 sales of "copy" are entered. The practice had grown up of granting patents or monopolies to persons for a whole class of books; the Stationers' Company itself held that for almanacs up to a very late period, and the Crown has retained that on the Bible and the Book of Common Prayer to the present day. These monopolies were defied, and the Star Chamber decree of 1566, disabling offending printers from exercising their trade and prescribing imprisonment, did not avail. In 1640 the Star Chamber and all the regulations of the press were abolished by the Long Parliament, but the abuse of unlicensed printing led to a new licensing act in 1643, which prohibited printing or importing without consent of the _owner_, on pain of forfeiture of copies to the owner, and which renewed the order that all books should be entered in the register of the Stationers' Company. The early registers still exist in Stationers' Hall, near Paternoster Row, London, in quaint and almost undecipherable chirography, and some of them have been reissued in _facsimile_. It was against the licensing act of this date that Milton, in 1644, printed his "Areopagitica," but he particularly excepts from his criticism of the act the part providing for "the just retaining of each man his several copy, which God forbid should be gainsaid."

{Sidenote: Statutory provisions}

In 1649 Parliament provided a penalty of 6_s._ 8_d._ and forfeiture for the reprinting of registered books, and prohibited presses except at London, Finsbury, York, and the universities, and in 1662 it added the requirement of deposit of a copy at the King's library and at each of the universities. To prevent fraudulent changes in a book after licensing, it was further required that a copy be deposited with the licenser at the time of application--apparently the origin of our record-deposit. With the expiration of these acts in 1679, legislative penalties lapsed and piracy became common. Charles II in 1684 renewed the charter of the Stationers' Company, approved its register, and confirmed to proprietors of books "the sole right, power, and privilege and authority of printing, as has been usual heretofore." The licensing act of 1649-62 was revived in 1685, and renewed up to 1694, although the booksellers now petitioned against it, and eleven peers protested against subjecting learning to a mercenary and perhaps ignorant licenser, and destroying the property of authors in their copies. The law lapsed because of the indignation of the Commons against the arbitrary power of the license, but the result was the abolition of statutory penalties, which left the punishment of piracy a matter of damages at common law, requiring a separate action for each copy sold, usually against irresponsible people. Piracy again flourished. The right at common law seems, however, to have been unquestioned, and the Court of Common Pleas held that a plaintiff who had purchased from the executors of an author was owner of the property at common law. Owners of literary property petitioned Parliament, 1703 to 1709, for security and redress, declaring that the property of English authors had always been held as sacred among the traders, that conveyance gave just and legal title, that the property was the same with houses and other estates, and that existing "copies" had cost at least L50,000, and had been used in marriage settlements and were the subsistence of many widows and orphans. This led to the famous statute of Anne, introduced in 1709, and passed March, 1710, "for the encouragement of learning," said to have been drawn in its original form by Swift, which remains the practical foundation of copyright in England and America to-day.

III

THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND

{Sidenote: The statute of Anne as foundation}

The statute of Anne, the foundation of the present copyright system of England and America, which took effect April 10, 1710, gave the author of works then existing, or his assigns, the sole right of printing for twenty-one years from that date and no longer; of works not then printed, for fourteen years and no longer, except in case he were alive at the expiration of that term, when he could have the privilege prolonged for another fourteen years. Penalties were provided, which could not be exacted unless the books were registered with the Stationers' Company, and which must be sued for within three months after the offence. If too high prices were charged, the Queen's officers might order them lowered. A book could not be imported without written consent of the owner of the printing right. The number of deposit copies was increased to nine. The act was not to prejudice any previous rights of the universities and others.

{Sidenote: Its relations to common law}

{Sidenote: The crucial cases}

This act did not touch the question of rights at common law, and soon after its statutory term of protection on previously printed books expired, in 1731, lawsuits began. The first was that of Eyre _v._ Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction as to "The whole duty of man," which had been first published in 1657, or seventy-eight years before. In this and several other cases the Court of Chancery issued injunctions on the theory that the legal right was unquestioned. But in 1769 the famous case of Millar _v._ Taylor, as to the copyright of Thomson's "Seasons," brought directly before the Court of King's Bench the question whether rights at common law still existed, aside from the statute and its period of protection. In this case Lord Mansfield and two other judges held that an author had, at common law, a perpetual copyright, independent of statute, one dissenting justice holding that there was no such property at common law. The copyright was sold by Millar's executors to Becket, who prosecuted Donaldson for piracy and obtained from Lord Chancellor Bathurst a perpetual injunction. In 1774, in the famous case of Donaldson _v._ Becket, this decision was appealed from, and the issue was carried to the highest tribunal, the House of Lords.

{Sidenote: The Judges' opinions}

The House of Lords propounded five questions to the judges. These, with the replies,[1] were as follows:

I. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent? Yes, 10 to 1 that he had the sole right, etc.,--and 8 to 3 that he might bring the action.

II. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition against the will of the author? No, 7 to 4.

III. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute and on the terms and conditions prescribed thereby? Yes, 6 to 5.

IV. Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity, by the common law? Yes, 7 to 4.

V. Whether this right is any way impeached, restrained, or taken away by the statute of 8th Anne? Yes, 6 to 5.

Footnote 1: The votes on these decisions are given differently in the several copyright authorities. These figures are corrected from 4 Burrow's Reports, 2408, the leading English parliamentary reports, and are probably right.

{Sidenote: The Lords' decision}

These opinions, that there was perpetual copyright at common law, which was not lost by publication, but that the statute of Anne took away that right and confined remedies to the statutory provisions, were directly contrary to the previous decrees of the courts, and on a motion seconded by the Lord Chancellor, the House of Lords, 22 to 11, reversed the decree in the case at issue. This construction by the Lords, in the case of Donaldson _v._ Becket, of the statute of Anne, has practically "laid down the law" for England and America ever since.

{Sidenote: Protests}

Two protests against this action deserve note. The first, that of the universities, was met by an act of 1775, which granted to the English and Scotch universities (to which Dublin was added in 1801), and to the colleges of Eton, Westminster and Winchester, perpetual copyright in works bequeathed to and printed by them. The other, that of the booksellers, presented to the Commons February 28, 1774, set forth that the petitioners had invested large sums in the belief of perpetuity of copyright, but a bill for their relief was rejected.

{Sidenote: Supplementary legislation}

In 1801 an act was passed authorizing suits for damages [at common law, as well as penalties under statute] during the period of protection of the statute, the need for such a law having been shown in the case of Beckford _v._ Hood in 1798, wherein the court had to "stretch a point" to protect the plaintiff's rights in an anonymous book, which he had not entered in the Stationers' register.

{Sidenote: The Georgian period}

Meantime, during the Georgian period, there had been much incidental copyright legislation. The provision in the statute of Anne for the limitation of prices was repealed by the act of 1739, which also continued the prohibition of the importation of foreign reprints, further continued in later acts or customs regulations from time to time, until these were disposed of by the statute law revision act of 1867. Copyright had been extended to engravings and prints by successive acts of 1734-5 (8 George II, c. 13), 1766-7 (7 George III, c. 38) and 1777 (17 George III, c. 57); to designs for linen and cotton printing by acts of 1787, 1789 and 1794; to sculpture by acts of 1798 and 1814 (54 George III, c. 56). A private copyright act of 1734 granted to Samuel Buckley, a citizen and stationer of London, sole liberty of printing an improved edition of the histories of Thuanus, and the engravings act of 1767 contained a similar special provision for the widow of Hogarth. In 1814 also, copyright in books was extended to twenty-eight years and the remainder of life, and the author was relieved from delivering the eleven library copies then required, except on demand. The university copyright act of 1775 (15 George III, c. 53), above-mentioned, and the other acts given with specific citation above, still constitute, in certain unrepealed provisions, a part of the English law, although others of their provisions and other laws were repealed by later copyright acts or by the statute law revision act of 1861 or that of 1867.

{Sidenote: Legislation under William IV}

In the reign of William IV the dramatic copyright act of 1833 (3 William IV, c. 15) became, and in part remains, the basis of copyright in drama. The lectures copyright act of 1835 (5 & 6 William IV, c. 65) for the first time covered that field. In 1836 the prints and engravings copyright (Ireland) act (6 & 7 William IV, c. 59) extended protection to those classes in that country, and another copyright act (6 & 7 William IV, c. 110) reduced the number of library copies required to five. These laws also remain in force, in unrepealed provisions, as a part of British copyright law.

{Sidenote: The Victorian act of 1842}

In 1841, under the leadership of Serjeant Talfourd, author of "Ion" and other dramatic works, a new copyright bill was presented to the House of Commons, in the preparation of which George Palmer Putnam, the American publisher, then resident in London, had been consulted. It provided for compulsory registration and extended the term to life and thirty years. The bill attracted little attention and met with no opposition until the second reading, when Lord Macaulay, a bachelor, interested in fame rather than profit to an author or his descendants, attacked the bill and "the great debate" ensued. Macaulay offered a bill limiting copyright to the life of the author, but finally assented to a compromise, by which the term was made forty-two years or the life of the author and seven years, whichever the longer. The resulting copyright act of 1842 (5 & 6 Victoria, c. 45) presented a new code of copyright, covering the ground of previous laws, but not in terms repealing them. As a result, provisions not specifically repealed or superseded remained in force, and the act of 1842, though serving since as the basic act, has had to be construed with the previous acts in view. The bill practically preserved, however, the restrictions of the statute of Anne. The term of forty-two years or life and seven years is applied to articles in periodicals, but the right in these reverts to the author after twenty-eight years. The Judicial Committee of the Privy Council may authorize the publication of a work which after the author's death the proprietor of the copyright refuses to republish.

{Sidenote: Protection of designs}

In the same year, 1842, there was passed also a copyright in designs act, covering designs for articles of manufacture, consolidating previous laws on this specific subject from 1787 to 1839 (two bills in this last year having extended protection to printing designs for woolen and other fabrics and to articles of manufacture generally), and providing for a registrar for such designs,--in which act the careless use of the word "ornamenting" seemed so to limit the scope that an amendatory act was passed in 1843.

{Sidenote: Subsequent acts}

An international copyright act, introduced in the first year of the Victorian reign, had been passed in 1838, to protect foreign books reprinted in England, but it proved inadequate and was repealed by the subsequent act of 1844 (7 & 8 Victoria, c. 12), providing more comprehensively for international copyright, on the basis of registration and deposit in London. The colonial copyright act of 1847 (10 & 11 Victoria, c. 95) authorized copyright legislation by any colony, subject to the approval of the Crown, and the suspension for such colony of the prohibition of foreign reprints, which act is therefore often cited as the foreign reprints act. An act of 1850 further covered designs and provided for their provisional registration, and one in 1851 protected exhibits at the international exhibition of that year in London. A third international copyright act was passed in 1852 (15 & 16 Victoria, c. 12) covering translations and including an authorization of a special treaty with France. The fine arts copyright act of 1862 (25 & 26 Victoria, c. 68) extended copyright to paintings, drawings, and photographs, hitherto unprotected, for life and seven years. A fourth international copyright act of 1875 (38 & 39 Victoria,