The laws were administered by inspectors of bookselling and enforced by the police and the civil courts. The laws were very severe. They applied primarily to the printer and bookseller, probably because he was an easier person to get at than the author and much more likely to be financially responsible. The printer was obliged to make public the name of the author and printer, the place of manufacture, and the place of sale of every book which he printed. A printer might be prosecuted if an authorized book turned out to be objectionable. This was a particularly unjust law because the printer was obliged to take the chance that, after the book had been duly censored and approved by authority, some censor, perhaps not the one who had originally approved it, might find something in it which he considered objectionable.
The penalties for infraction of the press laws were very severe. They consisted of the burning of books, confiscation of books, fines, flogging, imprisonment, banishment, and even burning alive. From 1660 to 1756, 869 authors, printers, and booksellers were sent to the Bastille. At least one-third of these were printers.
The press laws in France were more severe than almost anywhere else in Europe. In practical operation they favored foreign printers at the expense of the French. Naturally the result of all of this regulation was that Frenchmen did not print, and the market was supplied from abroad. If the laws had been strictly enforced printing would apparently have been driven out of France. There were, however, certain mitigations. In the first place certain things were exempt from the operations of the press laws, such as legal documents, police papers, documents bearing the signatures of advocates, and small publications of two leaves or less for the spread of news or for other purposes. This particular exemption was always the cause of a good deal of question and a good deal of abuse. Again, these laws were largely held in reserve, that is to say, they made possible the punishment of offending printers, but in many cases the offender was not proceeded against unless someone complained. Again, the judges used large discretion in dealing with cases of infraction of the press laws. In many cases licenses were issued in a very informal way, so that official responsibility was not involved; and sometimes a clandestine permission was given, the printer being assured that although his book could not be approved no action would be taken against him if he published it. False statements as to place of printing were used as a means of avoiding responsibility, sometimes apparently with the connivance of the authorities. The personal influence of the Chancellor was very great in these cases, and it was entirely possible for him to protect authors or writers if he chose to do so.
By the eighteenth century the condition had become practically intolerable. There was a great mass of laws on the statute books. Legislation was confused and contradictory and of the most drastic sort. The enforcement was sporadic and irregular, depending upon a great many personal and local considerations. There was no underlying principle to control either the making or enforcement of the laws. All this, like so much else that belonged to the life of the old days, was swept away by the French Revolution. All the laws regarding privilege, censorship, and the like were annulled in a mass. The press was given absolute freedom and left without any control whatever. Of course, it abused this freedom and the condition of things for a while was extremely bad. It finally readjusted itself, however, and gradually settled down into the condition which is familiar today.
CHAPTER IV
Development of the Idea of Copyright
As we have already seen, the early printers concerned themselves almost exclusively with the reprinting of church books and the classics. These last required for successful performance expert editorial work and proof reading. The printers engaged competent and sometimes very distinguished scholars to do this work for them and paid them for their labor. Out of this practice grew the idea that the author might properly share in the profits of the original work done by him. If he were paid for preparing a good text of Virgil, for instance, why could he not be paid for writing a critical article to be prefixed to the volume, and why not if he wrote a whole book about Virgil which the publisher desired to present to the world of scholars? At first there was some objection on the part of the writers themselves. It was held by many that it was undignified and improper for a writer to sell his ideas. Such opinions soon ceased to be common. The race of professional authors living by their pens came into existence.
The same questions which arose with regard to the printer’s right to his work extended to the question of the author’s right. Even before the author’s pecuniary right in his work was clearly recognized the claim was asserted that he ought to have control of it. Luther, for example, strongly asserted this right of control and strenuously objected to piracy on the ground of his desire to safeguard the correctness of texts purporting to be written by him. He does not appear to have cared for the money, as he himself corrected the texts of pirated editions of his works. He feared, however, that harm might come through typographical errors or even the deliberate falsification of his writing. This has always been a real danger, and one of the greatest complaints made by European authors against American printers previous to the days of international copyright was on the ground of the incorrectness of the pirated editions.
One of the first persons to enjoy anything like copyright protection in Germany was Albrecht Dürer. The city government of Nuremberg undertook to protect Dürer and his family in the right to print and publish his works. It is a curious mark of the undeveloped state of public opinion regarding these matters at this time that Dürer seems to have been protected more as an inventor than as an author. The early German copyrights in many cases seem not only to have prevented others from reprinting a specified book but also from printing any book on the same subject. For example, Dürer wrote a book on Proportion which was published in Paris. Before it was completed another artist named Beham undertook to publish a book on Proportion. Beham was ordered not to publish his book until after Dürer had completed publication. He insisted that his work was an absolutely independent one, not in any way copied from or related to the work of Dürer, but his plea was disregarded, although, as it afterward turned out, it was quite true that his work was entirely independent.
Throughout Europe during the period we have under consideration we find two ideas gradually clearing themselves from the confused thinking of the time and coming into recognition. The first is the idea that the writer of a book has for a time at least property rights in it, and the other that old books belong to the public. That is the basis of our modern thinking on the subject. We recognize that any writer may copyright his work and is entitled to the control of it during the copyright period, which varies in different countries. When his copyright has expired any publisher who cares to undertake the venture as a business proposition may bring out an edition and sell it at whatever price he chooses. That is the reason why old books are generally cheaper than new books. An edition of Scott or Dickens is purely a manufacturing proposition. An edition of Maurice Hewlett is a very different matter because Mr. Hewlett, or his publisher, holds copyright on his works and must be paid for the privilege of publishing.
Another important development in thought was the growth of the idea of right as distinguished from privilege. A privilege, as the word implies, is an act of grace. It is a grant of permission to do a thing which one has no inherent right to do. In England, as we shall later see, when the idea of copyright came to be seriously considered it was based on the common law, that is to say, it was recognized that the printer and author had some rights in the matter.