A most important event in the history of these unions was the conclusion, at Paris, in 1883, after ten years’ negotiation, of the Convention for the Protection of Industrial Property, with a supplemental protocol signed at Rome in 1886. By the terms of the convention Switzerland assumed the responsibility for the management of the central administration, and the bureau joined the others at Bern. There are sixteen states in this union, the last accession being that of the United States, which was made on the 30th of May, 1887.
Lastly, and one very properly following close on that for the protection of industrial property, came the Union for the Protection of Literary and Artistic Property. This, the result of conferences in 1884, 1885, and 1886 at Bern, was secured by the signature of the convention on the 9th of September, 1886, and the ratification exchanged 5th of December, 1887, with ten adhering states. The central bureau, like those preceding it, was placed under the high authority of the Swiss Confederation, and is consolidated with its sister Bureau of Industrial Property. It issues an ably edited monthly journal, Le Droit d’Auteur.
The failure of the United States to adhere to this convention, it was apprehended by many, would deprive the Union of much of its contemplated value and practical results. This sentiment found expression in terms of the most sincere and respectful regret on the part of the delegates representing the signing states. At the Bern Conference of 1886, to which the writer was commissioned as a consultative delegate, he submitted the following statement explanatory of the attitude of the United States towards the conference:
“Through a circular note of the Swiss Federal Council the United States have been invited, in concert with the other powers represented in the Copyright Conference held here in September, 1885, to instruct and empower a delegate to attend this conference, and to sign on behalf of the United States the International Convention for the General Protection of Literary and Artistic Property, drafted ad referendum by the conference last year, and a copy of which draft convention, with additional article and protocole de clôture, had been submitted to them. The United States again find it impracticable to depute a delegate plenipotentiary, and are constrained to withhold from any formal participation, as a signatory to the International Convention which resulted from the deliberations of 1885, and the transformation of that convention into a complete diplomatic engagement. To exhibit their benevolence, however, towards the principle involved, the United States desire, with, the pleasure of this conference, to be represented here, and has conferred upon me the honor to attend this conference as such representative, provided that my attendance is fully recognized and admitted to be without plenipotentiary powers; but under the limitation and reservation that the United States, not being a party to the proposed convention, reserve their privilege of future accession, under provisions of Article XVIII. thereof, which declare that ‘countries which have not joined in the present convention, and which by their municipal laws assure legal protection to the right whereof this convention treats, shall be admitted to accede thereto on their request to that effect.’ While not prepared to join in the proposed convention as a full signatory, the United States do not wish thereby to be understood as opposing the measure in any way, but, on the contrary, desire to reserve without prejudice the privilege of future accession, should it become expedient and practicable to do so. Should any question exist that the representation of the United States here, though under the specific and express limitation of a consultative delegate, is such a participation as would suffice to exclude them from the category of the ‘countries that had not joined in the present convention,’ and therefore to deprive them of the privilege of future accession, in event they desire to avail themselves of it, I wish to reiterate and emphasize the fact, that the course of the United States in commissioning a delegate is in nowise intended or to be construed as a participation in the result of the conference, either by acceptance or rejection. The position and attitude of the United States is one simply of expectancy and reserve. The Constitution of the United States enumerates among the powers especially reserved to Congress, that ‘to promote the progress of science and the useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries;’ which implies that the origination and limitation of measures to those ends rest with the legislative rather than the treaty-making powers. Copyright and patents are on the same footing of regulation by federal legislation, and the executive branch of the government cannot be unmindful of the continued pendency of its consideration by the legislative department, or disregard the constitutional right of that department to conclude international treaties on this important subject. The question of international copyright is one of great interest to the United States. In fact, few other countries can lay claim to greater concern than that naturally felt by people distinguished for enlightened, extensive, and growing intellectual life, and while not infringing upon the constitutional prerogative of Congress to initiate and conclude copyright legislation, likewise to define the rights of aliens and citizens within its jurisdiction, the Executive, in his first annual message to Congress, inviting its attention to the conference of last September, said, ‘action is certainly desirable to effect the object in view;’ and the Secretary of State for foreign affairs, in his official despatches relating to this conference, freely expresses his concurrence with the principle sought to be enunciated by the proposed convention, and conveys the hope that the time is not distant when rights of property in the creation of the mind may be universally secured under conditions favorable alike to the author and to the world’s right to share in the diffusion of ideas. That the brain that creates is entitled to and should receive its just and full compensation, is a sentiment having its origin in the inherent sense of honesty. Literary property has been to some extent recognized in all ages, and is to-day guaranteed in almost every State by domestic legislation. This recognition and guarantee should be without distinction of nationality and without regard to political frontiers. It is a matter of congratulation, and redounds much to the credit of the Swiss government, through whose active efforts this movement was successfully inaugurated, and supplemented by the patient and intelligent labor of the several conferences assembled here at its invitation, that a just and permanent settlement, once for all, of the grave question of the protection of works of literature and art, so long and unjustly denied, is about to be realized by the instrumentality of a uniform, efficacious, and equitable international convention.”
At the close of these remarks the president of the conference thanked the delegate from the United States, and assured him that the “accession of the United States would be received at any time with joy by all the contracting states, and he but reflected the sincere wish of all present in hoping that within a measurable time the United States will request that a place be made for them in the Union.”
It is time that the position of the United States on this important subject should be set free from the thraldom of that short-sighted selfishness which has hitherto fettered and degraded it. The Congress of the United States should seek suggestion from those sentiments of elevated justice and public honesty which are the sources of judicial counsel, and should act in that spirit of permanent and comprehensive wisdom, justice, and right which alone gives assurances of deep and expanding benefits, as well to nations as to individuals. In the absence of international copyright, just and fair compensation for native literary and artistic property is out of the question. American authors ask no protection, they demand no aids, no bounties; they simply ask not to be subjected to this discrimination against domestic talent that puts them at a cruel disadvantage with foreign competitors, the fatal usage of whose cheap reprints, “without authorial expenses,” has become an inveterate and crushing system. They ask only the privilege of meeting these competitors on equal terms in a fair contest. Literary property is the only kind of personal property not protected by the law when the owner is not a citizen of the United States. To the foreign owners of patents and trade-marks, which are so analogous to copyright, protection ample and easily enforced is accorded. It is half a century since Prussia first set the example of granting international copyright. In 1837 a law was passed that every country might secure copyright for its authors in Prussia upon granting reciprocity. This was followed by England in the succeeding year. France set the example, during the Empire, of forbidding the piracy of books and works of art of foreigners, before obtaining reciprocity. Property in ideas, dating back in England to the Statutes of Anne, was recognized in the Constitution of the United States, and is now conceded in every civilized country by legislative enactment. The same legal protection in the matter of ideas which is given to the natives of the state, is now accorded to the foreigner and outsider by all nations of high civilization except the United States. The right to profit by the product of the brain should secure for the author “that justice which is not a matter of climates and degrees.” The principle of copyright being admitted, it cannot logically be confined to state lines or national boundaries. Grant that it is difficult to give literary rights the well-defined nature and tangible form of what is known, technically, as real or personal property; still, outside of the ethical or abstract right, copyright is a modern development of the principle of property which commends itself to every sentiment of honor and justice, regardless of any obscurity which may have surrounded or inspired its conception. Who steals a man’s book may, indeed, steal trash, but, at least, it is his own trash, more closely his own than his purse. In a high state of civilization, a man’s book should be everywhere regarded as his property, and should ever be protected as scrupulously as if it were a pair of shoes, upon the construction of which he has also expended his time, his thought, his patience, and such talent and skill as he possesses. The sophistical plea that the culture and education of our people are to be imperilled, and the cost of books to be placed beyond the reach of the masses, is the mere weak subterfuge of those who are unwilling to be disturbed in their wrongful appropriation of the labor of others. The reverse of this claim has been abundantly shown. France has had an international copyright law for years, and series of books are issued there for five cents, and even two cents a number; it is the same with Germany; and these cheap publications represent all that is best in the literature of their respective countries. The spirit of literary ambition and activity is daily becoming greater and more diffused among the people of the United States, quickening and nourishing into life the seeds of a vigorous and vast native literature. It is impossible to determine the elements which must conspire to form and build up a native literature. It is a mystery, not solved to the satisfaction of scholars, why it should have put forth so early and transitory a bloom in Italy; why it should have ripened so late in Germany and Scotland; why in England alone it should know no vicissitudes of seasons, but smile in eternal spring. But we may be confidently assured that a people to whom Providence has given a stirring history, a land abounding in landscapes of beauty and grandeur, and a high degree of mental activity, extending the range of knowledge and scattering its seeds among all classes without price, cannot and will not remain long without an extensive and superior native literature. The literature of a people is the noblest emanation and truest measure of the intellect and earnestness and progression of that community. But there can be no decided literature, national in its basis, original in its character, independent in its aim, in any country where authorship is not a firm, reliable, and safe possession. Already the peer of the proudest in military achievements and material prosperity, truth, freedom, and civilization never presented a richer field and a brighter future for intellectual laborers than is to be found in the United States. Inexhaustible materials sleep in the womb of the morning, awaiting the forming hand of letters to seize and vitalize these mighty elements. The day must come when the pre-eminence of the United States in the field of material products will be rivalled by the existence of a literature as aspiring, as copious, and as brilliant as the spirit, resources, and destiny of the country; an American literature, breathing American ideas, and teaching respect and admiration for American government, furnishing to the young men and women of an impressionable age books which are American books, not foreign books; not the cheap books of fiction dedicated, as Matthew Arnold has said, to the “Goddess of Lubricity.”[115]
The international unions, indicated as having their seats in Bern, it must not be forgotten, are practically the only ones which the world has to show. The Bureau du Mètre in France, the only cognate institution in another country partaking of an international character, cannot be reckoned in the same class, being scientific and not commercial. It is noteworthy, as evidence of the high consideration given to these international unions, or rather to the location of their central bureaus in Switzerland, by its statesmen, that the directorship of the Postal Bureau was on its establishment accepted by an eminent member of the Federal Council, who thus voluntarily surrendered virtually a life-tenure position of the highest dignity, coupled with the certainty of succeeding to the Presidency of the Confederation, to assume a more laborious and responsible post, with little, if any, increase of salary. The acquisition by Switzerland of these important bureaus, with the world-wide scope of their operation, is properly regarded as forming a more effectual guarantee for its preservation as an independent state than any other that could be devised. These unions cannot fail to be also productive of a progressively improving understanding among all the states composing them, enabling their several systems to be compared, useful discoveries shared, legislation simplified and assimilated, the science of statistics facilitated, and efforts, not merely for the development of commercial, but also of the intellectual needs of their respective people, wisely stimulated and directed. These beneficent consequences must favorably reflect on the state furnishing the safe and common ground upon which this great work can be peaceably and skilfully prosecuted, and elevate it to an exceptional plane of importance and security, giving it an international function which is interesting to note. It will not do, in connection with these international bodies and episodes in Swiss history, to omit reference to the fact that the first great international court of arbitration of modern times had its sessions in Geneva, in 1872, by virtue of the Treaty of Washington between Great Britain and the United States to arbitrate what was known as the “Alabama Claims.” Over this most memorable court a distinguished citizen of Switzerland was chosen to preside. It was such an imposing spectacle, and the results were so important, as to give an old process a new dignity and reputation; and to awaken a fresh interest in the project of a permanent international high court of arbitration. To this project the Swiss Federal Council has been frequently addressed to lend its kindly offices. It is a project that every philanthropic publicist would be happy to see made practicable. Insurmountable difficulties seem to interpose, yet the fact of great states submitting their disputes to a body of impartial arbitrators for decision, and not the arbitrament of war, is not a new one, but of very ancient origin, old as history. As a principle, it has received the approval of sovereigns and statesmen, parliaments and congresses. The chief powers of Europe gave their sanction to it by the Treaty of Paris in 1856, and the government of the United States has, upon more than one occasion, given approval to it as the means of settling international controversy.[116] Barbarians and early people fought because they liked it, as the chivalrous Maoris did, and the Mussulmans, and the ancient Greeks. The romance and poetry of these people are all about war; it was their sport, their industry, their occupation; there was no other way to wealth and the heart of woman. Even the ancient Teutones regarded war as a great international lawsuit, and victory was the judgment of God in favor of the victor. Civilized people fight because they cannot help it, not because they like it. Civilized nations of to-day are supposed to act from motives of justice and humanity, and not upon calculations of profit, or ambition, or in the wantonness of mere caprice. Nations are now regarded as moral persons, bound so to act as to do each other the least injury and the most good. There is a growing international consciousness that, considered in the abstract, unconnected with all views of the causes for which it may be undertaken, war is an evil, and that it should yield to some plan of adjusting international quarrels more consonant with the present boasted Christian civilization. War, it is true, has its great conquests, its pomps, its proud associations, and heroic memories, yet there is murder in its march, and humanity and civilization, genius and statesmanship, are things to blush for if they fail to realize that
“Peace hath her victories
No less renown’d than war,”
and that these words convey a profound principle, and not merely an abstraction too refined to be reduced to practice.