Diary in America, Series Two

by Frederick Marryat

“That authors and inventors have, according to the practice among civilised nations, a property in the respective productions of their genius is incontestible; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labours for the means of subsistence; and are frequently, from the nature of their pursuits, or the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law.

“It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situated. A British merchant brings or transmits to the United States a bale of merchandise, and the moment it comes within the jurisdiction of our laws they throw around it effectual security. But if the work of a British author is brought to the United States, it may be appropriated by any resident here, and republished, without any compensation whatever being made to the author. We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of the merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.

“The committee think that this distinction in the condition of the two descriptions of property is not just; and that it ought to be remedied by some safe and cautious amendment of the law. Already the principle has been adopted in the patent laws, of extending their benefits to foreign inventions and improvements. It is but carrying out the same principle to extend the benefit of our copyright laws to foreign authors. In relation to the subject of Great Britain and France, it will be but a measure of reciprocal justice; for, in both of those countries, our authors may enjoy that protection of their laws for literary property which is denied to their subjects here.

“Entertaining these views, the committee have been anxious to devise some measure which, without too great a disturbance of interests or affecting too seriously arrangements which have grown out of the present state of things, may, without hazard, be subjected to the test of practical experience. Of the works which have heretofore issued from the foreign press, many have already been republished in the United States; others are in a progress of republication, and some probably have been stereotyped. A copyright law which should embrace any of these works, might injuriously affect American publishers, and lead to collision and litigation between them and foreign authors.

“Acting, then, on the principles of prudence and caution, by which the committee have thought it best to be governed, the bill which the committee intend proposing provides that the protection which it secures shall extend to those works only which shall be published after its passage. It is also limited to the subjects of Great Britain and France; among other reasons, because the committee have information that, by their laws, American authors can obtain there protection for their productions; but they have no information that such is the case in any other foreign country. But, in principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it. The bill also provides that an American edition of the foreign work for which an American copyright has been obtained, shall be published within reasonable time.

“If the bill should pass, its operation in this country would be to leave the public, without any charge for copyright, in the undisturbed possession of all scientific and literary works published prior to its passage—in other words, the great mass of the science and literature of the world; and to entitle the British or French author only to the benefit of every copyright in respect to works which may be published subsequent to the passage of the law.

“The committee cannot anticipate any reasonable or just objection to a measure thus guarded and restricted. It may, indeed, be contended, and it is possible that a new work, when charged with the expense incident to the copyright, may come into the hands of the purchaser at a small advance beyond what would be its price, if there were no such charge; but this is by no means certain. It is, on the contrary, highly probable that, when the American publisher has adequate time to issue carefully an edition of the foreign work, without incurring the extraordinary expense which he now has to sustain to make a hurried publication of it, and to guard himself against dangerous competition, he will be able to bring it into the market as cheaply as if the bill were not to pass. But, if that should not prove to be the case, and if the American reader should have to pay a few cents to compensate the author for composing a work which he is instructed and profited, would it not be just in itself? Has any reader a right to the use, without remuneration, of intellectual productions which have not yet been brought into existence, but lie buried in the mind of genius? The committee think not; and they believe that no American citizen would not feel it quite as unjust, in reference to future publications, to appropriate to himself their use, without any consideration being paid to their foreign proprietors, as he would to take the bale of merchandise, in the case stated, without paying for it; and he would the more readily make this trifling contribution, when it secured to him, instead of the imperfect and slovenly book now often issued, a neat and valuable work, worthy of preservation.

“With respect to the constitutional power to pass the proposed bill, the committee entertain no doubt, and Congress, as before stated, has acted on it. The constitution authorises Congress to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. There is no limitation of the power to natives or residents of this country. Such a limitation would have been hostile to the object of the power granted. That object was to promote the progress of science and useful arts. They belong to no particular country, but to mankind generally. And it cannot be doubted that the stimulus which it was intended to give to mind and genius, in other words, the promotion of the progress of science and the arts, will be increased by the motives which the bill offers to the inhabitants of Great Britain and France.

“The committee conclude by asking leave to introduce the bill which accompanies this report.”

Let it not, however, be supposed that Mr Clay was unreported by the American press; on the contrary, a large portion of it espoused the cause of the English author in the most liberal manner, indeed the boon itself, if granted, would in reality be of more advantage to America than to us; as many of them argued. The New York Daily Express observes, “But another great evil resulting from the present law is, that most of the writers of our own country are utterly precluded from advancing our native literature, since they can derive no emolument or compensation for their labours; and it is idle to urge that the devotees of literature, any more than the ingenious artisan or mechanic, can be indifferent to the ultimate advantages which should result alike to both from the diligent use and studious application of their mental energies. We patronise and read the works of foreign writers, but it is at the expense of our own, the books of the English author being procured free of all cost, supersede those which would otherwise be produced by our own countrymen,—thus the foreigner is wronged, while the same wrong acts again as a tariff upon our American author and all this manifest injury is perpetuated without its being qualified by the most remote advantage to any of the parties concerned.”