EXTRACT FROM THE COBDEN CLUB PRIZE ESSAY, BY DR. LEAVITT, OF NEW YORK. 1869.
When the people of these two nations shall all read freely the same books, and when the audience of both English and American authors shall be the whole English-speaking public throughout the world, the petty jealousies, the trivial misapprehensions, the unhappy distrusts, which dishonour the intelligence of the age, will be known no more....
The proposed International Copyright has an important bearing in this connexion. The object of this copyright is to give to the authors of books, or their assigns, the exclusive right of publication in both countries, in order to keep up the price in both. That this enhancement of the price in one country of books produced in the other will have a tendency to limit the mutual circulation of current literature, will not be questioned.
Whether the proper encouragement of authors requires this to be done, is the point which the two Governments should first settle. Copyright does not exist, except as created by law, for it begins only when the steps are taken which the law prescribes, and it continues only so long as the law extends it. There is, therefore, no natural right involved. A man’s thoughts are his own only so long as he keeps them to himself. When he has uttered them they become the thoughts of all who receive them, and who thenceforth use them at pleasure. The title to a thought by original invention is no better than the title to an asteroid by original discovery. The clothing of a man’s thoughts in language no more entitles him to their exclusive publication, after they are gone forth to the public, than a man’s careful study of the clothing of his person entitles him to forbid the imitation of his garb and gait as he walks the streets. The law creates Copyright on the assumption that the public good will be promoted by the encouragement thus granted to authors to publish their works....
The pecuniary return realised from their publications is neither the only nor the chief encouragement by which authors of merit are induced to publish their works. The good they may do to mankind, the reputation they may acquire, and the satisfaction of seeing their thoughts widely diffused and received, and made a part of the mental wealth of their country and age, outweigh a thousandfold, to an enlarged and generous mind, the value of the material silver and gold yielded by their Copyright. And it cannot be doubted that these higher returns are directly increased by freedom of publication unrestricted by Copyright; because cheapness of price, and variety in the forms of publication, are prime elements in the widest circulation of books....
It is impossible to exaggerate the value of this international exchange of ideas through the medium of books, as a means of that general assimilation of thought and life which is the highest guaranty of political and commercial intercourse and permanent friendship between the two countries. While each nation, for the most part, buries its own literary trash, and each retains the exclusive circulation of books adapted specially to its own use, the whole volume of the best thoughts of one country have now their widest diffusion, through their freedom of publication in the other.
The present is a favourable time for the consideration of this important question. The following extract from the editorial columns of the Bookseller, of May 1, is confirmatory and encouraging:—
An English author has no rights whatever in the United States; this should be thoroughly and clearly understood. He may make any arrangement he may think proper with regard to the publication of his works, but can acquire no Copyright in any way. He may wish Brown and Co. to be his sole and only publishers, but cannot prevent Jones and Co. bringing out rival editions; consequently, he can derive little or no profit from his works. By sending out early sheets, so as to give Brown a few days’ advantage over Jones, he may get a small payment, but the sum may be very small. Moreover, should Messrs. Jones have noted his coming greatness, and have been the first to announce his first book, albeit quite unknown to him, they will claim to be his publishers; and although, he may wish to give Brown the preference, they will feel themselves aggrieved and insist upon helping to make him famous. Should he go to America, and first publish his book there, he will find himself in a still worse position; he is like the notorious “Man without a Country”—he has positively no rights at all; he has none in America, and has none here. It was long supposed that an American author was in a similar position; but it is not so. By a fluke he has secured rights which he never dreamed of, and by means of our Copyright-Law, may obtain privileges denied him by his own. His plan is simply this: having prepared two copies of his MS., he places one in the hands of his Boston or New York publisher, with directions to publish on a certain day; the other he forwards to a London house, with directions to publish at the same time. Just before the day of publication, which is possibly at that time of the year when Saratoga is an abode more agreeable than the Fifth Avenue, he proceeds to the Canadian side of the Falls. Here he spends a few hours, and then returns, without encountering more inconvenience than saving his hotel expenses by buying a suit of clothes, on which he pays no duty on his return. Thereupon he finds that by so simple a process he has obtained Copyright in the United States, in the dominion of Canada, in Australia, India, France, Germany, and Great Britain! We can imagine the lively twinkle of his eye as he crosses the Suspension-bridge, to think what cute people the Britishers are to have secured all these privileges for him.
We believe, therefore, that American authors are not very anxious about the matter. By taking a little trouble, they can secure all they wish.
English authors have not been fairly treated. They are at great disadvantage, and must be satisfied for the present to work for fame, or but for little more. Fortunately for them, the American publishers, seeing that they do what they are legally entitled to do, are quarrelling amongst themselves, and are crying out for protection.
[Here is introduced the case of an American publishing-house stated by themselves, which concludes thus:—
... “A review of these facts naturally suggests the reflection that the interests of the book-trade in this country, no less than the protection of authors in their just rights, require further legislation at the hands of Congress. It is high time for the passage of a well-considered International Copyright-Law, such as will wipe away from our country the reproach of what are known as ‘pirated editions.’”]
We quite agree with this. Some legislation is called for. But now comes a third party, the public, which has its rights as well as the others. We shall very likely incur some odium for admitting that the million have any rights whatever to the productions of men of letters, and may be told that emanations of the brain are as much the private property of their authors as the guineas are of the man of business. So they are, so long as they keep them, to themselves; but when they have communicated them to the world they are no longer their exclusive property. It is right that they should have a modified protection, and we think it must be admitted that English authors are amply protected in their own country. We think, however, that the American public will not be disposed to give them the same amount of protection there, nor is it well that they should have it. They are, however, entitled to some protection, and we hope the day is not far distant when English authors will reap some solid advantages wherever the English language is spoken. We are disposed to think that seven years would generally be long enough for the purpose; although so short a time would be hard upon such men as Grote, Motley, Merivale, Webster, and others, whose lives have been spent upon their works. We take it for granted that the law, when modified, will be the same on both sides, and that Dickens and Longfellow will receive equal treatment. We are too selfish to give up our cheap editions of Longfellow, and American citizens are not what we take them to be, if they would, for a whole generation, debar themselves from popular editions of Dickens.
(From The Bookseller, June 1, 1869.)
Copyright in Canada.—Letter by the Times’ correspondent:—“Under the English Law, English Copyrights reprinted in the United States are imported into Canada, subject to the same duty as other imported articles; but these Copyrights cannot be reprinted in Canada, the consequence being that the Canadian public is almost entirely dependent on the United States for reprints. The English author is seriously injured, inasmuch as not one-tenth part of the reprints which find their way to Canada are entered at the Custom-house or pay duty.”... Mr. Rose replies:—“The undersigned is ready to admit that the principle involved is theoretically at variance with the general policy of the mother-country, in so far as the object of that policy is to secure to authors an absolute monopoly in works of literature for a term of years; but it must be remembered that the necessity for this exceptional legislation arises out of a previous partial departure from this theoretical policy, which in its practical operation is shown to afford a premium to the industrial interests of a foreign country, &c. If it could be shown that the concessions asked for would result in any way to the practical disadvantage of the author, or lessen the protection which it is intended to secure to literary labour, there might be some reason for withholding them. If the rate of duty, whether import or excise, were inadequate, it would be an equally reasonable argument against the extension of the law; and in that case the rate could be augmented. But the undersigned fails to see any reason why, so long as the importation from abroad is permitted, the publication in Canada at an equal rate of duty should be withheld.”
(Extract from the Atlantic Monthly, October, 1867.)
... This work, we repeat, cost the author 24,000 dollars to produce. Messrs. Harpers sell it at 15 dollars a copy; the usual allowance to the author is 10 per cent. of the retail price, and as a rule, it ought not to be more.
(Extract from the American Booksellers’ Guide, June 1, 1869.)
At a public meeting recently held in Montreal, respecting the Copyright-Law, it was resolved to apply to Parliament for an amendment permitting Canadian publishers to print British Copyright works upon the payment of 12½ per cent. to British authors.... The payment by the publisher of 5 or 10 per cent., or of a fixed sum, for a Copyright of a book, whether by an American or British author, does not necessarily increase the price of the book.
(Extracts from an Article in the Athenæum, July 17, 1869.)
This great question is of especial interest at the present time, in consequence of opinions and demands put forward by Canada with relation to Copyright property in the United Kingdom. It appears that for some time past a correspondence has been carried on between the Canadian Government and the Imperial authorities upon the subject of “Copyright-Law in Canada.” This “Correspondence” (having been laid before the Canadian Parliament) has been printed and published. It commences with a resolution of the Canadian Senate (passed 15th of May, 1868) that the Governor-General should be prayed “to impress upon Her Majesty’s Government the justice and expediency of extending the privileges of the Imperial Copyright Act, 1847, so that whenever reasonable provision and protection shall, in Her Majesty’s opinion, be secured to the authors, Colonial reprints of British Copyright works shall be placed on the same footing as foreign reprints in Canada, by which means British authors will be more effectually protected in their rights, and a material benefit will be conferred on the printing industry of the Dominion.”...
All the North-American colonies soon availed themselves of this Act of 1847, and Orders in Council were founded upon them; the rights of British authors being deemed sufficiently protected by an ad valorem import duty of 20 per cent. upon the value of the “foreign reprints,” that, being about one-tenth of the price of the works as published in England!
There appears to have been no debate in either House upon this Act of 1847, and it seems to have escaped all public notice on the part of British authors and publishers during its progress in Parliament. From the time Her Majesty’s Orders in Council enabled the colonies to avail themselves of that Act, it has operated as a stimulus and considerable premium to the “legalised robbery” of British Copyright property in the United States, and has, practically, given printers and publishers there a monopoly in “foreign reprints” of English books. The Act of 1847 is, therefore, a partial confiscation of those Copyrights which have been acquired in England under Earl Stanhope’s Act of 1842, because the colonies have, for the last twenty years, been almost exclusively supplied with English books by United States reprints of those books....
In 1867 the “dominion of Canada” was created by the Imperial Act of that year, which united all Her Majesty’s North American Colonies. It was then found that printing had become much cheaper in Canada than it was in the United States; and amongst the earliest Acts of the first session of the Canadian Parliament two statutes were passed—one, “An Act respecting Copyrights;” and the other, “An Act to impose a Duty upon Foreign Reprints of British Copyright Works.” Under the first of these Acts, no work of “any person resident in Great Britain or Ireland” is to be entitled to the protection of that Act unless “the same shall be printed and published in Canada.” And under the second of the above Acts it is sought to keep alive the injustice of allowing “foreign reprints” to be imported into Canada as a basis for that resolution of the Canadian Parliament to which we have called attention.
Such are the facts which preceded the Canadian “Correspondence.” It commences with the resolution which, in effect, advocates “the justice and expediency” of enabling Her Majesty’s Canadian subjects at their discretion (and without the permission of the owners) to confiscate the property of authors of British Copyright works upon the terms of the publisher paying such authors a royalty of 12½ per cent. upon the price of the Canadian reprints, that being about one-tenth of the publication price of the work in England! It appears the “justice and expediency” of adopting this Canadian resolution has been pressed very strongly upon the authorities at the Colonial-office, and likewise at the Board of Trade, by the Hon. J. Rose, the Canadian “Minister of Finance.” He frankly admits that the policy of the Act of 1847 (so far as respects the protection of British authors) has long been an utter failure; that the amount of duties received for their benefit “is a mere trifle;” and that “it is next to impracticable to enforce the law.” These statements are confirmed by a letter, dated June 11, 1868, from Mr. John Lovell (a Montreal publisher) to Mr. Rose, and which appears in the Correspondence. Mr. Lovell says: “At present only a few hundred copies pay duty, and many thousands pass into the country without registration, and pay nothing at all; thus having the effect of seriously injuring the publishers of Great Britain, to the consequent advantage of those of the United States. I may add that, on looking over the Custom-house entries to-day, I have found that not a single entry of an American reprint of an English Copyright (except the Reviews and one or two magazines) has been made since the third day of April last, though it is notorious that an edition of 1,000 of a popular work, coming under that description, has been received and sold within the last few days by one bookseller in this city.”
In support of the Canadian resolution, the Hon. J. Rose likewise urges the greater cheapness now of printing in Canada than in the United States. Upon this point he is also confirmed by Mr. Lovell, who says: “It is undeniable that Canadian printers would be enabled to comply with the requisite conditions (that is, of paying a royalty of 12½ per cent. to the author), and produce books, thanks to the local advantages, at a much cheaper rate than they can be produced in the States, and so bring about a large export business.”...
This application on the part of the Canadians is answered at considerable length by the Board of Trade; the substance of that answer being “that the question raised is far too important, and involves too many considerations of imperial policy, to render it possible to comply with that application. My Lords, however, fully admit that the anomalous position of Canadian publishers with respect to their rivals in the United States of America is a matter which calls for careful inquiry; but they feel that such an inquiry cannot be satisfactorily undertaken without, at the same time, taking into consideration various other questions connected with the imperial laws of Copyright and the policy of International Copyright Treaties, and they are, therefore, of opinion that the subject should be treated as a whole, and that an endeavour should be made to place the general law of Copyright, especially that part of it which concerns the whole continent of North America, on a more satisfactory footing. The grievance of which the Canadian publishers complain has arisen out of the arrangement sanctioned by Her Majesty’s Government in 1847, under which United States reprints of English works entitled to Copyright in the United Kingdom were admitted into Canada on payment of an import duty, instead of being, as in the United Kingdom, absolutely prohibited as illegal.”...
A circular by Mr. Purday contains the following:—
A fact transpired only a few days since of an order being sent for some of the musical works published in Bond-street, on which it was stated that they must be “American printed copies”.... It is said that the Americans have the means of disposing of 30,000 or 40,000 copies of any popular book or song they choose to reproduce. This, of course, is a fine premium for supplanting the English publisher in the sale of his own Copyright works in his own colonies.