The Complete Essays of Charles Dudley Warner

by Charles Dudley Warner

Consider first the author, and I mean the author, and not the mere craftsman who manufactures books for a recognized market. His sole capital is his talent. His brain may be likened to a mine, gold, silver, copper, iron, or tin, which looks like silver when new. Whatever it is, the vein of valuable ore is limited, in most cases it is slight. When it is worked out, the man is at the end of his resources. Has he expended or produced capital? I say he has produced it, and contributed to the wealth of the world, and that he is as truly entitled to the usufruct of it as the miner who takes gold or silver out of the earth. For how long? I will speak of that later on. The copyright of a book is not analogous to the patent right of an invention, which may become of universal necessity to the world. Nor should the greater share of this usufruct be absorbed by the manufacturer and publisher of the book. The publisher has a clear right to guard himself against risks, as he has the right of refusal to assume them. But there is an injustice somewhere, when for many a book, valued and even profitable to somebody, the author does not receive the price of a laborer's day wages for the time spent on it—to say nothing of the long years of its gestation.

The relation between author and publisher ought to be neither complicated nor peculiar. The author may sell his product outright, or he may sell himself by an agreement similar to that which an employee in a manufacturing establishment makes with his master to give to the establishment all his inventions. Either of these methods is fair and businesslike, though it may not be wise. A method that prevailed in the early years of this century was both fair and wise. The author agreed that the publisher should have the exclusive right to publish his book for a certain term, or to make and sell a certain number of copies. When those conditions were fulfilled, the control of the property reverted to the author. The continuance of these relations between the two depended, as it should depend, upon mutual advantage and mutual good-will. By the present common method the author makes over the use of his property to the will of the publisher. It is true that he parts with the use only of the property and not with the property itself, and the publisher in law acquires no other title, nor does he acquire any sort of interest in the future products of the author's brain. But the author loses all control of his property, and its profit to him may depend upon his continuing to make over his books to the same publisher. In this continuance he is liable to the temptation to work for a market, instead of following the free impulses of his own genius. As to any special book, the publisher is the sole judge whether to push it or to let it sink into the stagnation of unadvertised goods.

The situation is full of complications. Theoretically it is the interest of both parties to sell as many books as possible. But the author has an interest in one book, the publisher in a hundred. And it is natural and reasonable that the man who risks his money should be the judge of the policy best for his whole establishment. I cannot but think that this situation would be on a juster footing all round if the author returned to the old practice of limiting the use of his property by the publisher. I say this in full recognition of the fact that the publishers might be unwilling to make temporary investments, or to take risks. What then? Fewer books might be published. Less vanity might be gratified. Less money might be risked in experiments upon the public, and more might be made by distributing good literature. Would the public be injured? It is an idea already discredited that the world owes a living to everybody who thinks he can write, and it is a superstition already fading that capital which exploits literature as a trade acquires any special privileges.

The present international copyright, which primarily concerns itself with the manufacture of books, rests upon an unintelligible protective tariff basis. It should rest primarily upon an acknowledgment of the author's right of property in his own work, the same universal right that he has in any other personal property. The author's international copyright should be no more hampered by restrictions and encumbrances than his national copyright. Whatever regulations the government may make for the protection of manufactures, or trade industries, or for purposes of revenue on importations, they should not be confounded with the author's right of property. They have no business in an international copyright act, agreement, or treaty. The United States copyright for native authors contains no manufacturing restrictions. All we ask is that foreign authors shall enjoy the same privileges we have under our law, and that foreign nations shall give our authors the privileges of their local copyright laws. I do not know any American author of any standing who has ever asked or desired protection against foreign authors.

This subject is so important that I may be permitted to enlarge upon it, in order to make clear suggestions already made, and to array again arguments more or less familiar. I do this in the view of bringing before the institute work worthy of its best efforts, which if successful will entitle this body to the gratitude and respect of the country. I refer to the speedy revision of our confused and wholly inadequate American copyright laws, and later on to a readjustment of our international relations.

In the first place let me bring to your attention what is, to the vast body of authors, a subject of vital interest, which it is not too much to say has never received that treatment from authors themselves which its importance demands. I refer to the property of authors in their productions. In this brief space and time I cannot enter fully upon this great subject, but must be content to offer certain suggestions for your consideration.

The property of an author in the product of his mental labor ought to be as absolute and unlimited as his property in the product of his physical labor. It seems to me idle to say that the two kinds of labor products are so dissimilar that the ownership cannot be protected by like laws. In this age of enlightenment such a proposition is absurd. The history of copyright law seems to show that the treatment of property in brain product has been based on this erroneous idea. To steal the paper on which an author has put his brain work into visible, tangible form is in all lands a crime, larceny, but to steal the brain work is not a crime. The utmost extent to which our enlightened American legislators, at almost the end of the nineteenth century, have gone in protecting products of the brain has been to give the author power to sue in civil courts, at large expense, the offender who has taken and sold his property.

And what gross absurdity is the copyright law which limits even this poor defense of author's property to a brief term of years, after the expiration of which he or his children and heirs have no defense, no recognized property whatever in his products.

And for some inexplicable reason this term of years in which he may be said to own his property is divided into two terms, so that at the end of the first he is compelled to re-assert his ownership by renewing his copyright, or he must lose all ownership at the end of the short term.

It is manifest to all honest minds that if an author is entitled to own his work for a term of years, it is equally the duty of his government to make that ownership perpetual. He can own and protect and leave to his children and his children's children by will the manuscript paper on which he has written, and he should have equal right to leave to them that mental product which constitutes the true money value of his labor. It is unnecessary to say that the mental product is always as easy to be identified as the physical product. Its identification is absolutely certain to the intelligence of judges and juries. And it is apparent that the interests of assignees, who are commonly publishers, are equal with those of authors, in making absolute and perpetual this property in which both are dealers.