Chapter 3
In view of the wide diversity of the plans and suggestions presented to this Committee, there was certainly some ground for the statement made in his report by the chairman, Senator Lot M. Morrill, of Maine, that "there was no unanimity of opinion among those interested in the measure." He maintained, further, that an international copyright was not called for by reasons of general equity or of constitutional law; that the adoption of any plan which had been proposed would be of very doubtful advantage to American authors, and would not only be an unquestionable and permanent injury to the interests engaged in the manufacture of books, but a hindrance to the diffusion of knowledge among the people, and to the cause of American education.
This report closed for the time the consideration of the subject.
The efforts in behalf of international copyright have been always more or less hampered by the question being confused with that of a protective tariff.
The strongest opposition to a copyright measure has as a rule come from the protectionists. Richard Grant White said in 1868: "The refusal of copyright in the United States to British authors is in fact, though it is not so avowed, a part of the 'American' protective system." And again: "With free trade we shall have just international copyright."
It would be difficult, however, for the protectionists to show logical grounds for their position. American authors are manufacturers, who are simply asking, first, that they shall not be undersold in their home market by goods imported from abroad on which no (ownership) duty has been paid,--which have, namely, been simply "appropriated;" and secondly, that the government may facilitate their efforts to secure a sale for their own goods in foreign markets. These are claims with which a protectionist who is interested in developing American industry ought certainly to be in sympathy.
The contingency that troubles him, however, is the possibility that, if the English author is given the right to sell his books in this country the copies sold may be to a greater or less extent manufactured in England, and the business of making these copies may be lost to American printers, binders, and paper men. He is namely, much more concerned for the protection of the makers of the _material casing_ of the book than for that of the author who creates its essential substance.
It is evidently to the advantage of the consumer, upon whose interests the Philadelphia resolutions laid so much stress, that the labor of preparing the editions of his books be economized as much as possible.
The principal portion of the cost of a first edition of a book is the setting of the type, or, if the work is illustrated, in the setting of the type and the designing and engraving of the illustrations.
If this first cost of stereotyping and engraving can be divided among several editions, say one for Great Britain, one for the United States, and one for Canada and the other colonies, it is evident that the proportion to be charged to each copy printed is less, and that the selling price per copy can be smaller, than would be the case if this first cost has got to be repeated in full for each market.
It is then to the advantage of the consumer that, whatever copyright arrangement be made, nothing shall stand in the way of foreign stereotypes and illustrations being duplicated for use here whenever the foreign edition is in such shape as to render this duplicating an advantage and a saving in cost.
The few protectionists who have expressed themselves in favor of an international copyright measure, and some others who have fears as to our publishing interests being able to hold their own against any open competition, insist upon the condition that foreign works to obtain copyright must be wholly remanufactured and republished in this country.
We have shown how such a condition would, in the majority of cases, be contrary to the interests of the American consumer, while the British author is naturally opposed to it because, in increasing materially the outlay to be incurred by the American publisher in the production of his edition, it proportionately diminishes the profits or prospects of profits from which is calculated the remuneration that can be paid to the author.
The measure of permitting the foreign book to be reprinted by all dealers who would contract to pay the author a specified royalty has at first sight something specious and plausible about it. It seems to be in harmony with the principles of freedom of trade, in which we are believers. It is, however, directly opposed to those principles; first, it impairs the freedom of contract, preventing the producer from making such arrangements for supplying the public as seem best to him; and secondly, it undertakes, by paternal legislation, to fix the remuneration that shall be given to the producer for his work, and to limit the prices at which this work shall be furnished to the consumer. There is no more equity in the government's undertaking this limitation of the producer and protection of the consumer in the case of _books_ than there would be in that of bread or of beef.
Further, such an arrangement would be of benefit to neither the author, the public, nor the publishers, and would, we believe, make of international copyright, and of any copyright, a confusing and futile absurdity.
A British author could hardly obtain much satisfaction from an arrangement which, while preventing him from having his American business in the hands of a publishing house selected by himself, and of whose responsibility he could assure himself, threw open the use of his property to any dealers who might choose to scramble for it. He could exercise no control over the style, the shape, or the accuracy of his American editions; could have no trustworthy information as to the number of copies the various editions contained; and if he were tenacious as to the collection of the royalties to which he was entitled, he would be able in many cases to enforce his claims only through innumerable lawsuits, and he would find the expenses of the collection exceed the receipts.
The benefit to the public would be no more apparent. Any gain in the cheapness of the editions produced would be more than offset by their unsatisfactoriness: they would, in the majority of cases, be untrustworthy as to accuracy or completeness, and be hastily and flimsily manufactured. A great many enterprises, also, desirable in themselves, and that would be of service to the public, no publisher could, under such an arrangement, afford to undertake at all, as, if they proved successful, unscrupulous neighbors would, through rival editions, reap the benefit of his judgment and his advertising. In fact, the business of reprinting would fall largely into the hands of irresponsible parties, from whom no copyright could be collected.
The arguments against a measure of this kind are, in short, the arguments in favor of international copyright. A very conclusive statement of the case against the equity or desirability from any point of view of such an arrangement in regard to home copyright was made before the British Commission, in 1877, by Herbert Spencer. His testimony is given in full in the _Popular Science Monthly_ for November, 1878, and February, 1879.
The recommendation had been made that, for the sake of securing cheap books for the people, the law should give to all dealers the privilege of printing an author's books, and should fix a copyright to be paid to the author that should secure him a "fair profit for his work." Mr. Spencer objected that--
First. This would be a direct interference with the laws of trade, under which the author had the right to make his own bargains. Second. No legislature was competent to determine what was "a fair rate of profit" for an author. Third. No average royalty could be determined which could give a fair recompense for the different amounts and kinds of labor given to the production of different classes of books. Fourth. If the legislature has the right to fix the profits of the author, it has an equal right to determine that of his associate in the publication, the publisher; and if of the publisher, then also of the printer, binder, and paper-maker, who all have an interest in the undertaking. Such a right of control would apply with equal force to manufacturers of other articles of importance to the community, and would not be in accordance with the present theories of the proper functions of government. Fifth. If books are to be cheapened by such a measure, it must be at the expense of some portion of the profits now going to the authors and publishers; the assumption is that book producers and distributors do not understand their business, but require to be instructed by the state how to carry it on, and that the publishing business alone needs to have its returns regulated by law. Sixth. The prices of the best books would in many cases, instead of being lessened, be higher than at present, because the publishers would require some insurance against the risk of rival editions, and because they would make their first editions smaller, and the first cost would have to be divided among a less number of copies. Such reductions of prices as would be made would be on the flimsier and more popular literature, and even on this could not be lasting. Seventh. For the enterprises of the most lasting importance to the public, requiring considerable investment of time and capital, the publishers require to be assured of returns from the largest market possible, and without such security enterprises of this character could not be undertaken at all. Eighth. Open competition of this kind would, in the end, result in crushing out the smaller publishers, and in concentrating the business in the hands of a few houses whose purses had been long enough to carry them through the long and unprofitable contests that would certainly be the first effect of such legislation.
All the considerations adduced by Mr. Spencer have, of course, equal force with reference to open international publishing, while they may also be included among the arguments in behalf of international copyright.
With these views of a veteran writer of books may very properly be associated the opinions of the experienced publisher, Mr. Wm. H. Appleton, who, in a letter to the New York _Times_ in 1872, says:
"The first demand of property is for security.... To publish a book in any real sense--that is, not merely to print it, but to make it well and widely known--requires much effort and large expenditure, and these will not be invested in a property which is liable to be destroyed at any moment. Legal protection would thus put an end to evil practices, make property secure, business more legitimate, and give a new vigor to enterprise. Nor can a policy which is unjust to the author, and works viciously in the trade, be the best for the public. The publisher can neither afford to make the book so thoroughly known, nor can he put it at so low a price, as if he could count upon permanent and undisturbed possession of it. Many valuable books are not reprinted at all, and therefere are only to be had at English prices, for the same reason that publishers are cautious about risking their capital in unprotected property."
The copy-book motto, "Honesty is the best policy," fails often enough to come true (at least as to material results) in the case of the individual, simply because his life is not always long enough to give an opportunity for all the results of his actions to be arrived at. The community, however, in its longer life, is subject to the full influence of the certain though sometimes slow-working relations of cause to effect, relations which, among other things, bring out the essential connection between economics and ethics, and which show in the long-run the just method to be the wise method. An enlightened self-interest finds out the advantage of equity. If the teaching of history makes anything evident, it is that in the transactions of a nation, honesty _pays_, even in the narrowest and most selfish sense of the term, and nothing but honesty can ever pay. Among the many classes of interests to which this applies international copyright certainly belongs.
Rejecting the Elderkin-Sherman suggestion of an open market for republishing as in no way effecting the objects desired; the Baldwin-Cox plan of giving protection only to books of which the type had been set and the printing done in this country, as narrow in principle and uneconomic in practice; and the Bristed-Morgan proposition to extend the right of copyright without limitation or restriction, as not giving sufficient consideration to the business requirements, and as at present impracticable to carry into effect--we would recommend a measure based upon the suggestion of the British Commission, coupled with one or two of the provisions that have been included in the several American schemes:
1. That the title of the foreign work be registered in the United States simultaneously with its publication abroad.
2. That the work be republished in the United States within six months of its publication abroad.
3. That for a limited term, say ten years, the stipulation should be made that the republishing be done by an American citizen.
4. That for the same term of years the copyright protection be given to those books only that have been printed and bound in this country, the privilege being accorded of importing foreign stereotypes and electrotypes of cuts.
5. That, subject to these provisions, the foreign author or his assigns shall be accorded the same privileges now conceded to an American author.
I believe that, in the course of time, the general laws of trade would and ought to so regulate the arrangements for supplying the American public with books that, if there were no restriction as to the nationality of the publisher or as to the importation of printed volumes, the author would select the publishing agent, English or American, who could serve him to best advantage; and that that agent would be found to be the man who would prepare for the largest possible circle of American readers the editions best suited to their wants.
The foreign author would before long recognize that it was to his interest to be represented by the publisher who understood the market most thoroughly and who had the best facilities for supplying it. If English publishers, settling here, could excel our American houses in this understanding and in these facilities, they ought to be at liberty to do so, and it would be for the interest of the public that no hindrances should be placed in their way.
The experience of our American houses, however, who have had business with English authors and publishers is that it takes some little time for them to obtain a clear perception of the requirements of the American market and of American readers, and of the very material differences existing between the status here and in Great Britain. And it would be my fear that, if the copyright were granted at once without restriction, there would be an interregnum of some years, during which these authors and publishers were obtaining their American education, before the American readers could obtain freely the books they wanted in the editions they were willing to purchase.
Our friends on the other side could not resist the temptation of experimenting, before providing what was really wanted, as to how long our market would stand their expensive $7, $5, and $3 editions of books that we have been accustomed to buy here for $2.50, $2, and $1; and as a consequence, they would sell books by dozens or hundreds that ought to be sold by thousands; their authors would receive an inconsiderable copyright, and the American public would be badly served and would become indignant.
But if the channels of communication between the English authors and their American readers were once fairly established, as they would be, I think, under the arrangements suggested, it would not, I believe, be possible at a later date to interfere with them, even if all restrictions were removed. When American readers were buying by thousands a suitable edition, at a moderate price, of a work by a standard English author who was himself receiving a good return from his enlarged sales, this author would be as little likely, at the expiration of the ten years, to restrict those sales by insisting that his work should be sold here in the costly and unsuitable English edition, as to stipulate that it should be sold here in a Russian translation. It is probable, also, that the including in the measure of these restrictions, even if but for a limited term of years, would gain for it some support that would be important for its success. It seems probable that, if the present conditions of trade are maintained, American book-makers need not be especially troubled ten years hence by the competition of books manufactured in England, and that, if the various duties affecting the manufacture could be abolished, we could well spare the duty on books themselves.
I can, however, imagine no state of affairs in which it would be economical or desirable to insist upon two settings of type for a book designed for different groups of English-speaking readers; and the more generally this first and most important part of the cost of a book can be economized by being divided between the two markets, the greater the advantage in the end to author, public, and publisher.
A proposition will doubtless be made in the course of a year by the British Government for the appointment of an International Commission for a fresh consideration of the subject, and our government ought to prepare for this International Commission by the early appointment of a Home Commission to give due consideration to the several interests involved in the question, to collect again the different sets of opinions, and to harmonize these as far as practicable.
By the time our English friends are ready to talk the matter with us, we ought to have informed ourselves definitely as to what kind of a measure is on the whole most desirable, and how much of this it is at this present time practicable to carry into effect.
There has undoubtedly during the past ten years been a growth of enlightened public sentiment on the question, but I should still be indisposed to entrust its settlement to the House of Representatives, and should suppose that it could probably be handled to best advantage by the Senate in the shape of a treaty.
It is due to American publishers to explain that, in the absence of an international copyright, there has grown up among them a custom of making payments to foreign authors which has become, especially during the last twenty-five years, a matter of very considerable importance. Some of the English authors who testified before the British Commission stated that the payments from the United States for their books exceeded their receipts in Great Britain. These payments secure of course to the American publisher no title of any kind to the books. In some cases they obtain for him the use of advance sheets by means of which he is able to get his edition printed a week or two in advance of any unauthorized edition that might be prepared. In many cases however, payments have been made some time after the publication of the works, and when there was no longer even the slight advantage of "advance sheets" to be gained from them.
While the authorization of the English author can convey no title or means of defence against the interference of rival editions, the leading publishing houses have, with very inconsiderable exceptions, respected each others' arrangements with foreign authors, and the editions announced as published "by arrangement with the author," and on which payments in lieu of copyright have been duly made, have been as a rule not interfered with. This understanding among the publishers goes by the name of "the courtesy of the trade." I think it is safe to say that it is to-day the exception for an English work of any value to be published by any reputable house without a fair and often a very liberal recognition being made of the rights (in equity) of the author.
In view of the considerable amount of harsh language that has been expended in England upon our American publishing houses, and the opinion prevailing in England that the wrong in reprinting is entirely one-sided, it is in order here to make the claim, which can, I believe, be fully substantiated, that in respect to the recognition of the rights of authors unprotected by law, their record has during the past twenty-five years been in fact better than that of their English brethren. They have become fully aroused in England to the fact that American literary material has value and availability, and each year a larger amount of this material has had the honor of being introduced to the English public. According to the statistics of 1878, ten per cent of the works issued in England in that year were American reprints. The acknowledgments, however, of any rights on the part of American authors have been few and far between, and the payments but inconsiderable in amount. The leading English houses would doubtless very much prefer to follow the American practice of paying for their reprinted material, but they have not succeeded in establishing any general understanding similar to our American "courtesy of the trade," and books that have been paid for by one house are, in a large number of cases, promptly reissued in cheaper rival editions by other houses. It is very evident that, in the face of open and unscrupulous competition, continued or considerable payments to authors are difficult to provide for; and the more credit is due to those firms who have, in the face of this difficulty, kept a good record with their American authors.
One London publisher in London made a custom for years of sending a liberal remittance to the author of the "Wide, Wide World" for each new volume sent to him. But the competition of the unauthorized editions had proved so sharp that he told me he got no profit from his purchases, and did not see how he could continue them.
The fate of the author of "Helen's Babies" was still harder. Of his first book seven editions were issued by different British houses, aggregating together an enormous sale, from which he received hardly a penny. For the advance sheets of the sequel to this one firm paid him £50. But so fierce was the scramble for it among the half dozen or more publishers who hurried through their reprints from the American journal in which it was appearing as a serial, that one energetic house sent it out to the British public minus the concluding chapter, while another, still more enterprising, had the last chapter of his edition added by an English hand, and the moral of the story was entirely transformed.
Of the books of Longfellow, Lowell, Holmes, Mrs. Prentiss, Mark Twain, Dr. Mayo, Miss Phelps, Miss Alcott, Mrs. Stowe, Bayard Taylor, and most of our more popular authors, there are, in like manner, various rival editions, and no one house, however good its intentions, can afford to make a practice of paying these authors, as its neighbors cannot be depended upon to respect its arrangements.
On the other hand, the leading English authors, like George Eliot, Miss Mulock, William Black, R. D. Blackmore, Wilkie Collins, Thomas Hardy, Mrs. Alexander, Tyndall, Huxley, and very many others, have received and are receiving liberal payments from their American publishers, who are accustomed, as I have said, not to interfere with each others' purchases.