Chapter 1

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INTERNATIONAL COPYRIGHT

CONSIDERED IN SOME OF ITS RELATIONS TO ETHICS AND POLITICAL ECONOMY

BY

GEORGE HAVEN PUTNAM

AN ADDRESS DELIVERED JANUARY 29TH, 1878, BEFORE THE NEW YORK FREE-TRADE CLUB

NEW YORK

G. P. PUTNAM'S SONS 182 FIFTH AVENUE 1879.

COPYRIGHT, 1879, BY G. P. PUTNAM'S SONS.

INTERNATIONAL COPYRIGHT.[1]

[1] A paper read January 29th, 1878, before the New York Free-Trade Club.

The questions relating to copyright belong naturally to the sphere of political economy. They have to do with the laws governing production, and with the principles regulating supply and demand; and they are directly dependent upon a due determining of the proper functions of legislation, and of the relations which legislation, having for its end the welfare of the community as a whole, ought to bear towards production and trade.

As students of economic science, we recognize the fact that, in all its phases, it is in reality based upon two or three very simple propositions, such as:

Two plus two make four.

Two from one you can't.

That which a man has created by his own labor is his own, to do what he will with, subject only to his proportionate contribution to the cost of carrying on the organization of the community under the protection of which his labor has been accomplished, and to the single limitation that the results of his labor shall not be used to the detriment of his fellow-men.

It is not in the power of legislators to make or to modify the laws of trade; it is their business to act in accordance with these laws.

Economic science is, then, but the systematizing, on the basis of a few generally accepted principles, of the relations of men as regards their labor and the results of their labor, namely, their property. There is therefore an essential connection between the systems governing all these relations, however varied they may be. Soundness of thought in regard to one group of them leads to soundness of thought about the others.

Interested as we are in the work of bringing the community to a sound and logical standard of economic faith and practice, it is important for us to recognize and to emphasize the essential relations connecting as well the different _scientific_ positions as the various sets of _fallacious_ assumptions. Further, we can hardly lay too much stress upon the oft-repeated dictum that a system may be correct in theory yet pernicious in practice, maintaining, as we do, that where the application of a theory brings failure the result is due either to the unsoundness of the theory or to some blundering in its application.

We claim, also, that with reference to the rights of labor, property, and capital, the free-trader is the true protectionist. It is the free-trader who demands for the laborer the fullest, freest use of the results of his labor, and for the capitalist the widest scope in the employment of his capital; and it is he who asserts that the paternal authority which restricts the workingman in the free exchange of the products of his craft, which limits the directions and the methods for the use of capital, appropriates--or, to speak more strictly, destroys--a portion of the value of the labor and the capital, and prevents the ownership from being real or complete.

Authors are laborers, and their works are, as fully as is the case with any other class of laborers, the results of their own productive faculties and energies.

Literary laborers lay claim, therefore, to the same protection for a full and free enjoyment of the results of their labors as is demanded by those who work with their hands and who are in the strict sense of the term manufacturers. Such enjoyment would include the right to sell their productions in the open market where they pleased and how they pleased, and if this right to a free exchange is restricted within political boundaries, is hampered by artificial obstacles, the author is not the full owner of his material; a portion of its value has been taken away from him. In so far as international copyrights have not been established, this is the position of the author of to-day.

Copyright is defined by Drone in his "Law of Copyright," as "the exclusive right of the owner to multiply and to dispose of copies of an intellectual production." It is also used as a synonym for literary property. Regarding literary property, Drone says:

"There can be no property in a production of the mind unless it is expressed in a definite form of words. But the property is not in the words alone; it is in the intellectual creation, which language is merely a means of expressing and communicating."

Copyright may therefore be said to be the legal recognition of brain-work as property.

It is akin in its nature to patent-right, which is also but the legal recognition of the existence of property in an idea, or a group of ideas, or the form of expression of an idea.

International _patent_-rights have been recognized and carried into effect much more generally than have copyrights. The patentee of an improved toothpick would be able to secure to-day a wider recognition of his right as a creator than is accorded to the author of "Uncle Tom's Cabin" or of "Adam Bede."

"The existence of literary property," says Drone, "is traced back by record to 1558, when an entry of copies appears in the register of the Company of Stationers of London." Between 1558 and 1710 there was no legislation creating this property or confining ownership, nor any abridging its perpetuity or restricting its enjoyment. It was understood, therefore, to owe its existence to common law, and this conclusion, arrived at by the weightiest authorities, remained practically unquestioned until 1774. During this earlier period there were some instances of the recognition of literary property, but the earliest reported case concerning such property occurred in 1666, in which the House of Lords unanimously agreed that "a copyright was a thing acknowledged at common law." A licensing act, passed in Parliament in 1674, and expiring in 1679, prohibited, under pain of forfeiture, the printing of any work without the consent of the owner. But the first act attempting to fully define and protect copyright in Great Britain was that of 1710, known as the 8th of Anne. It was entitled "An Act for the Encouragement of Learning," and, declaring that an author should have the sole right of publishing his book, prescribed penalties against any who should infringe that right. Its evident intention was to more clearly establish, and make more easily defensible, the rights of authors, but curiously enough it had for its effect a very material limitation of those rights.

It provided, namely, that copyright should be secured to the author or his assigns for fourteen years, with a privilege of renewal to the author or his representatives for fourteen years longer. This privilege of renewal was not conveyed to any one who might have purchased the author's copyright. It was supposed for a long time that this statute had not interfered with any rights that authors might possess at common law, and in the oft-cited case of Millar _vs._ Taylor in 1769, in regard to a reprint of Thomson's "Seasons," a majority of the judges of the King's Bench (including among them Lord Mansfield) gave it as their opinion that the act was _not_ intended to destroy, and had not destroyed, copyright at common law, but had simply protected it more efficiently during the periods specified. The opinion delivered by Lord Mansfield, as chief justice of the court, remains one of the strongest and most conclusive statements of the property-rights of authors, and has been termed one of the grandest judgments in English judicial literature. Its conclusion is as follows:

"Upon the whole, I conclude that upon every principle of reason, natural justice, morality, and common law; upon the evidence of the long received opinion of this property appearing in ancient proceedings and in law cases; upon the clear sense of the legislature, and the opinions of the greatest lawyers of their time since that statute--the right (that is in perpetuity) of an author to the copy of his work appears to be well founded, ... and I hope the learned and industrious will be permitted from henceforth not only to reap the same, but the full profits of their ingenious labors, without interruptions, to the honor and advantage of themselves and their families."

In 1774, in the case of Donaldson _vs._ Beckett, the House of Lords decided on an appeal, first, that authors had possessed at common law the right of copyright in perpetuity, but, secondly, that this right at common law had been taken away by the statute of Anne, and a term of years substituted for perpetuity.

Chief among those who, in opposition to this decision, advised the lords that literary property was not less inviolable than any species of property known to the law of England, was Sir William Blackstone. The most important influence in support of the decision was exercised by the arguments of Justice Yates and Lord Camden. "This judgment," says Drone, "has continued to represent the law; but its soundness has been questioned by very high authorities." In 1851 Lord Campbell expressed his agreement with the views of Lord Mansfield. In 1854, Justice Coleridge said: "If there was one subject more than another upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give his judgment peculiar weight, it was this. I require no higher authority for a position which seems to me in itself reasonable and just."

In 1841 an important debate took place in Parliament upon this same issue. The right at common law of ownership in perpetuity was asserted by Sergeant Talfourd and Lord Mahon, and the opinion that copyright was the creation of statute law and should be limited to a term of years was defended by Macaulay.

The conclusions of the latter were accepted by the House, and the act of 1842, which is still in force, was the result. By this act the term of copyright was fixed at forty-two years, or if at the end of that time the author be still living, for the duration of his life.

I have referred to these discussions as to the nature of the authority through which the author's ownership exists or is created, as the question will be found to have an important bearing upon international copyright. In connection with this debate of 1842 was framed the famous petition of Thomas Hood, which, if it were not presented to Parliament, certainly deserved to be. It makes a fair presentment of the author's case, and is worth quoting:

"That your petitioner is the proprietor of certain copyrights which the law treats as copyhold, but which in justice and equity, should be his freeholds. He cannot conceive how 'Hood's Own,' without a change in the title-deeds as well as the title, can become 'Everybody's Own' hereafter.

"That your petitioner may burn or publish his manuscripts at his own option, and enjoys a right in and control over his own productions which no press, now or hereafter, can justly press out of him.

"That as a landed proprietor does not lose his right to his estate in perpetuity by throwing open his grounds for the convenience and gratification of the public, neither ought the property of an author in his works to be taken from him, unless all parks become commons.

"That your petitioner, having sundry snug little estates in view, would not object, after a term, to contribute his private share to a general scramble, provided the landed and moneyed interests, as well as the literary interest, were thrown into the heap; but that in the mean time, the fruits of his brain ought no more to be cast amongst the public than a Christian woman's apples or a Jewess' oranges.

"That cheap bread is as desirable and necessary as cheap books; but it hath not yet been thought just or expedient to ordain that, after a certain number of crops, all corn-fields shall become public property.

"That, whereas in other cases long possession is held to affirm a right to property, it is inconsistent and unjust that a mere lapse of twenty-eight or any other term of years should deprive an author at once of principal and interest in his own literary fund. To be robbed by Time is a sorry encouragement to write for Futurity!

"That a work which endures for many years must be of a sterling character, and ought to become national property; but at the expense of the public, or at any expense save that of the author or his descendants. It must be an ungrateful generation that, in its love of 'cheap copies,' can lose all regard for 'the dear originals.'

"That, whereas, your petitioner has sold sundry of his copyrights to certain publishers for a sum of money, he does not see how the public, which is only a larger firm, can justly acquire even a share in copyright, except by similar means--namely, by purchase or assignment. That the public having constituted itself by law the executor and legatee of the author, ought in justice, and according to practice in other cases, to take to his debts as well as his literary assets.

"That when your petitioner shall be dead and buried, he might with as much propriety and decency have his body snatched as his literary remains.

"That, by the present law, the wisest, virtuousest, discreetest, best of authors, is tardily rewarded, precisely as a vicious, seditious, or blasphemous writer is summarily punished--namely, by the forfeiture of his copyright.

"That, in case of infringement on his copyright, your petitioner cannot conscientiously or comfortably apply for redress to the law whilst it sanctions universal piracy hereafter.

"That your petitioner hath two children, who look up to him, not only as the author of the 'Comic Annual,' but as the author of their being. That the effect of the law as regards an author is virtually to disinherit his next of kin, and cut him off with a book instead of a shilling.

"That your petitioner is very willing to write for posterity on the lowest terms, and would not object to the long credit; but that, when his heir shall apply for payment to posterity, he will be referred back to antiquity.

"That, as a man's hairs belong to his head, so his head should belong to his heirs; whereas, on the contrary, your petitioner hath ascertained, by a nice calculation, that one of his principal copyrights will expire on the same day that his only son should come of age. The very law of nature protests against an unnatural law which compels an author to write for anybody's posterity except his own.

"Finally, whereas it has been urged, 'if an author writes for posterity, let him look to posterity for his reward,' your petitioner adopts that very argument, and on its very principle prays for the adoption of the bill introduced by Mr. Sergeant Talfourd, seeing that by the present arrangement posterity is bound to pay everybody or anybody but the true creditor."

In France perpetual copyright was guaranteed from very early times. The Ordinances of Moulines of 1556, the Declaration of Charles IX. in 1571, and the letters-patent of Henry III. constituted the ancient legislation on the subject, but the sovereign had a right to refuse the guarantee whenever he thought desirable. In 1761 the Council of State continued to a grandson of La Fontaine the privilege that his grandfather possessed, on condition, however, that he should not assign it to a bookseller. The Revolution of 1789 modified this regime, and now copyright is guaranteed to authors and their widows during their lives, to their children, for twenty years; and if they leave no children, to their heirs for ten years only. According to French law, a French subject does not injure his copyright by publishing his work first in a foreign country. No matter where the publication takes place, copyright forthwith accrues in France on his behalf, and on the necessary deposit being effected, its infringement may be proceeded against in a French court. Moreover, a foreigner publishing in France will enjoy the same copyright as a native, and this whether he has previously published in his own or in any other country or not. In Germany and in Austria copyright continues for the authors life and for thirty years after his death. The longest term of copyright is conceded in Italy, where it endures for the life of the author and forty years, with a second term of forty years, during which last any one can publish the work upon paying the royalty to the author or his assigns. The shortest term of copyright exists in Greece, where it endures for but fifteen years from publication.

In the United States, by the law of 1831, the term is for twenty-eight years, with the right of renewal to the author, his wife or his children, for fourteen years further. The renewal must be recorded within six months before the expiration of the first term of twenty-eight years.

Drone says:

"In the United States the authorities have been divided not less than in England regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, in the case of Wheaton _vs._ Peters, the same question came before the Supreme Court, that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774--namely, whether copyright in a published work existed by common law; and if so, whether it had been taken away by statute.

"The court held that the law had been settled in England to the effect that the author had no right in a published work excepting that secured by statute; that there was no common law of the United States, and that the common law as to copyright had not been adopted in Pennsylvania, in which State the cause of this action arose; and that by the copyright statute of 1790, Congress did not affirm an existing right, but created one. The opinion, which was delivered by Justice McLean, was concurred in by three of the judges, and dissented from by two, Justices Thompson and Baldwin, who defended the positions and recalled the arguments of Lord Mansfield and Sir William Blackstone. Justice Baldwin said: 'Protection is the avowed and real purpose of the act of 1790. There is nothing here admitting the construction that a new right is created ... It is a forced and unreasonable interpretation to consider it as restricting or abolishing any pre-existing right!'"

Previous to the act of Congress of 1790, acts securing copyright to authors for limited terms had been passed in Connecticut and Massachusetts in 1783, in Virginia in 1785, in New York in 1786, and in other States at later dates. The statute of 1790 gave copyright for fourteen years, with a renewal to the author, if living, of fourteen years further. In 1831 was passed the act of already quoted, and in 1870 the regulation went into effect that a printed title of the work copyrighted must be filed with the Librarian of Congress before publication, and two copies of the complete book be delivered within ten days after publication.

In 1874 it was provided that the form of the copyright notice in books should read, "Copyright, 18--, by A. B."

The first step towards a recognition of the rights of foreign authors was taken in 1836 by Prussia, when she prohibited the sale within her boundaries of any pirated or counterfeited editions of German works.

In 1837 a Copyright Convention was concluded between the different members of the German Confederation. In 1838 the British Parliament passed a law to obtain for authors the benefits of international copyright, and in 1846 England entered into a convention with Prussia, in 1851 with France and Hanover, in 1854 with Belgium, and between 1854 and 1860 with Holland, Italy, Switzerland, and Spain. Between 1846 and 1861 similar conventions were entered into by France with Belgium, Germany, Holland, Switzerland, and Italy, and nearly all the Continental powers have now copyright arrangements with each other. As far as I have been able to learn, it is not requisite under these arrangements to have a book separately entered for copyright in each country. The single entry in the place of first publication is sufficient to protect the author, and to leave him free to make, within a specified time, his own arrangements with foreign publishers.

In the general copyright statutes, Parliament made no express distinction between native and foreign authors. The copyright was granted "to authors," without any restriction as to nationality. It has been contended, therefore, by jurists on the one hand that the privilege must be presumed to have been intended for British subjects exclusively, and on the other that it of necessity belonged to all authors, whether native or foreign.

There were, previous to 1854, several conflicting decisions of the courts on this question. In that year the House of Lords decided, in the case of Jeffreys _v._ Boosey, that a foreign author, resident abroad, was not entitled to English copyright.

In 1868 the House of Lords, in the case of Routledge _v._ Low, with reference to the rights of an American author who was residing in Canada at the time of the publication of his book in London, declared that an alien became entitled to English copyright by first publishing in the United Kingdom, provided he were, at the time of publication, anywhere within the British dominions. Drone says that "this judgment has continued to represent the law."

It is certainly the case that for a few years after 1868, as a consequence of this decision, several American authors whose books were being published in London, took up a temporary residence in Canada, which enabled their London publishers to enter the books for copyright, and to pay the authors an honorarium.

I am not able to quote any decisions that have set aside or modified the above, but I have been advised by leading London publishers that the effect of this judgment has in some way been nullified, and that "Canada copyrights" can no longer be depended upon for protecting American authors in England.

In the United States copyright can at present be secured only by a citizen or permanent resident, and there is no regulation to prevent the use, without remuneration, of the literary property of foreign authors. The United States is therefore at present the only country itself possessing a literature of importance, and making a large use of the literature of the world, which has done nothing to recognize and protect by law the rights of foreign authors of whose property it is enjoying the benefit, or to obtain a similar recognition and protection for its own authors abroad.