Chapter 2

It has looked after the rights of the makers of its sewing-machines, its telephones, and its mouse-traps, but it appears to have entirely forgotten the makers of its literature. The position taken by our government in securing for an American author the benefit of the sale of his works at home, while practically estopping him from obtaining any advantage from their sales abroad, is somewhat analogous to its treatment of American ship-owners, who are allowed to pick up all the freights that offer inland and along the coast, but are forbidden to earn a single penny on the high seas.

It is not easy to understand the cause of this continued indifference to the claims of our literary workmen; they do not come into competition with the Delaware River or with any manufacturing interests for _subsidies_; they ask simply for _markets_.

It is true that there have been in the history of our country governments which seemed impatient of the claims of any "literary fellers;" but the majority of our administrations have shown a fair respect for such "fellers," and even a readiness to make use of their services.

The difficulty has really been, however, not with the administrations, but with the people at large, who have failed to fairly educate themselves on the subject, or to recognize that an international copyright was called for not merely on principles of general equity, but as a matter of simple justice to American authors.

These have suffered, and are suffering from the present state of things in two ways. In the first place, they lose the royalty on the sales of their books in Europe, Canada, Australia, etc., that ought to be secured to them by treaties of copyright reciprocity. These sales have become, with the growth of American literature, very considerable, and are each year increasing in importance. Even a quarter of a century ago there were enough American books whose fame was world-wide to have rendered a very moderate royalty on their sales a matter of great importance to their authors and to the community. "Uncle Tom's Cabin," Irving's "Sketch-Book" and other volumes, Thompson's "Land and the Book," Warner's "Wide, Wide World," Webster's Dictionary, James' "Two Years before the Mast," and Peter Parley's histories are a few random specimens from the earlier list, which is a great deal longer than might at first be thought.

In an official report of the 25th Congress it was stated that up to 1838 not less than 600 American works had been reprinted in England. According to the "American Facts" of G.P. Putnam, 382 American books, acknowledged to be such, were reprinted in Great Britain between 1833 and 1843, while a large amount of American literary material had been "adapted," or issued under new titles as if they had been original British works. Among these last he quotes Judge Story's "Law of Bailments," Everett's "Greek Grammar," Bancroft's Translation of Heeren's Histories, Dr. Harris' "Natural History," etc., etc.

Secondly, the want of an international copyright has placed American authors at a disadvantage because it has checked the sales of their wares at home. Other things being equal, the publisher will, like any other trader, manufacture such goods as will give him the largest profit, and as he can sell the most readily.

If he has before him an American novel on which, if he prints it, he must pay the author a royalty, and an English novel of apparently equal merit, on which he is not called upon by law to pay anything, the commercial inducement is on the side of the latter. If, on the score of patriotism or for some other reason, he may decide in favor of the former, his neighbor or rival will take the English work, and will have advantages for underselling him. As a matter of fact, as I shall specify further on, it is the custom of the leading publishing houses to make some payment for the English material that they reprint, but as they secure no legal title to such material, they cannot, as a rule, pay as much for it as they would for similar American work. There is also the advantage connected with English works that they usually come to the American publisher in type, in convenient form for a rapid examination, and that he can often obtain some English opinions about them which help him to make up his own publishing judgment, and are of very material assistance in securing for the books the favorable attention of the American public. It has therefore been the case that an American work of fiction has had to be a good deal better than a similar English work, and more marked in its attractiveness in order to have anything like the same chance of success. And what is the case with fiction, is true, though to a less degree, with books for young folks and works in other departments of literature. It is to be said, however, that this difference in favor of English productions has been very much greater in past years than at present, and is, I think, steadily decreasing.

American writers have, against all disadvantages, forced their books to the favorable attention, not only of the American but of the foreign public, and the best work is now fairly secure of a hearing. But there is no question but what the want of a copyright measure has, as above explained, operated during the past three quarters of a century to retard and discourage the growth of American literature, especially of American fiction, and to prevent American authors from receiving a fair return for their labor. An international copyright is the first step towards that long-waited-for "great American novel."

In 1876 a Commission was appointed by the Government of Great Britain "to make inquiry in regard to the laws and regulations relating to home, colonial, and international copyright." The Commission was made fairly representative of the different interests to be considered, comprising among authors: Earl Stanhope, Louis Mallet, Fitzjames Stephen, Edward Jenkins, William Smith, Sir Henry Holland, James Anthony Froude, and Anthony Trollope, and also Sir Julius Benedict for the composers, Sir Charles Young for the dramatists, Sir John Rose and Mr. Farrer for colonial interests, and Mr. F. R. Daldy for the publishers; and it has done its work in the thorough, painstaking way which is characteristic of the methods of British legislation.

It has collected during the past two years a vast mass of testimony from various sources, and after full consideration has arrived at a series of recommendations which it has presented to Parliament, and which will in all probability be adopted.

It is recommended that the copyright on books, instead of holding for forty-two years from date of registration, shall endure for the lifetime of the author and for thirty years thereafter. This is the arrangement at present existing in Germany, and it has the important advantage that under it all the copyrights of an author will expire at the same date.

The Commission further recommends (and this is the recommendation most important for our subject) that the right of copyright throughout the British dominions be extended to any author, wherever resident and of whatever nationality, whose work may first be published within the British Empire.

With reference to the present relations of British authors with this country, it uses the following words: "It has been suggested to us that this country would be justified in taking steps of a retaliatory character, with a view of enforcing, incidentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion that, on the highest public grounds of policy and expediency, it is advisable that our law should be based on correct principles, irrespectively of the opinions or the policy of other nations. We admit the propriety of protecting copyright, and it appears to us that the principle of copyright, if admitted, is of universal application. We therefore recommend that this country should pursue the policy of recognizing the author's rights, irrespective of nationality."

Here is a claim for a far-seeing, statesmanlike policy, based upon principles of wide equity, and planned for the permanent advantage of literature in England and throughout the world. Contrast with this the narrow and local views of the following resolutions adopted at a meeting held in Philadelphia in January, 1872, with reference to international copyright, at which, if I remember rightly, Mr. Henry Carey Baird presided;

"I. That thought, unless expressed, is the property of the thinker" (a pretty safe proposition, as, _until_ expressed, it could hardly incur any serious risk of being appropriated); "when given to the world, it is as light, free to all.

"II. As property it can only demand the protection of the municipal law of the country to which the thinker is subject."

The property which would, if it still existed, most nearly approximate to such a definition as this is that in _slaves_. Twenty years ago, an African chattel who was worth $1000 in Charleston became, on slipping across to the Bermudas, as a piece of property valueless. He had no longer a market price.

It is this ephemeral kind of ownership, limited by accidental political boundaries, that our Philadelphia friends are willing to concede to the work of a man's mind, the productions into which have been absorbed the grey matter of his brain and perhaps the best part of his life.

"III. The author of any country, by becoming a citizen of this, and assuming and performing the duties thereof, can have the same protection that an American author has."

We have already shown what an exceedingly unprotective and unremunerative arrangement it is that is accorded to the American author, and we have yet to find a single one, except perhaps Mr. Carey, who is satisfied with it.

Why a European author, who has before him, under international conventions, the markets of his native country and of all the world, excepting belated America, should be expected to give up these for the poor half-loaf of protection accorded to his American brother we can hardly understand.

"IV. The trading of privileges to foreign authors for privileges to be granted to Americans is not just, because the interests of others than themselves are sacrificed thereby."

That strikes one as a remarkable sentence to come from Philadelphia. Here are a number of American manufacturers who ask for a certain very moderate amount of protection for their productions, and our Philadelphia friends, filled with an unwonted zeal for the welfare of the community at large, say, "No; this won't do. Prices would be higher, and _consumers_ would suffer."

It is evident that this want of practical sympathy with these literary manufacturers is not due to any lack of interest in the enlightenment of the community, for the last article says:

"V. Because the good of the whole people and the safety of our republican institutions demand that books shall not be made too costly for the multitude by giving the power to foreign authors to fix their price here as well as abroad."

I think we may well doubt whether education as a whole, including the important branch of ethics, is advanced by permitting our citizens to appropriate, without compensation, the labor of others, while through such appropriation they are also assisting to deprive our own authors of a portion of their rightful earnings. But apart from that, the proposition, as stated, proves too much. It is fatal to all copyright and to all patent-right. If the good of the community and the safety of our institutions demand that, in order to make books cheap, the claim to a compensation for the authors must be denied, why should we continue to pay copyrights to Longfellow and Whittier, or to the families of Irving and Bryant? The so-called owners of these copyrights actually have it in their power, in connection with their publishers, to "fix the prices" of their books in this market. This monopoly must indeed be pernicious and dangerous when it arouses Pennsylvania to come to the rescue of oppressed and impoverished consumers against the exactions of greedy producers, and to raise the cry of "free books for free men."

There is certainly something refreshing in this zeal for the rights of the consumer, though we may doubt the equity of its application in this particular instance; but we can nevertheless hardly be satisfied to have an utterance like that of these resolutions quoted (as it is in the last edition of the Encyclopædia Britannica) as "the latest American views on the subject."

The history of the efforts made in this country to secure international copyright is not a long one. The attempts have been few, and have been lacking in organization and in unanimity of opinion, and they have for the most part been made with but little apparent expectation of any immediate success. Those interested seem to have always felt that popular opinion was, on the whole, against them, and that progress could be hoped for only through the slow process of building up by education and discussion a more enlightened public sentiment.

In 1838, after the passing of the first International Copyright Act in Great Britain, Lord Palmerston invited the American Government to coöperate in establishing a copyright convention between the two countries.

In the year previous, Henry Clay, as chairman of a committee on the subject, had reported to the Senate very strongly in favor of such a convention, taking the ground that the author's right of property in his work was similar to that of the inventor in his patent.

This is a logical position for a protectionist, interested in the rights of labor, to have taken, and the followers of Henry Clay, who are to-day opposed to any measure of the kind, would do well to bear in mind this opinion of their ablest leader.

No action was taken in regard to Mr. Clay's report or Lord Palmerston's proposal.

In 1840 Mr. G. P. Putnam issued in pamphlet form "An Argument in behalf of International Copyright," the first publication on the subject in the United States of which I find record. In 1843 Mr. Putnam obtained the signatures of ninety-seven publishers, printers, and binders to a petition he had prepared, and which was duly presented to Congress. It took the broad ground that the absence of an international copyright was "alike injurious to the business of publishing and to the best interests of the people at large."

A memorial was presented the same year in opposition to this petition, setting forth, among other things, that an international copyright would "prevent the adaptation of English books to American wants." In the report made by Mr. Baldwin to Congress twenty-five years later, he remarks that "the mutilation and reconstruction of American books to suit English wants are common to a shameless extent."

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 title 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 title of the "Copyright Association 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 Association 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 passage 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, Mass., reported a bill that had been prepared with the co-operation of the Executive Committee of the Copyright Association, 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 assigns.

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 Massachusetts, 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 Association, under whose general suggestions this bill of Mr. Baldwin's had been framed, were Dr. S. Irenæus 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. Cox 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. Cox'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 illustrations 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 Association, 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 competition 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.