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 INTERNATIONAL COPYRIGHT

 CONSIDERED IN SOME OF ITS RELATIONS TO ETHICS AND POLITICAL ECONOMY

 BY

 GEORGE HAVEN PUTNAM

 AN ADDRESS DELIVERED JANUARY 29TH, 1878, BEFORE THE NEW YORK FREE-TRADE CLUB

 NEW YORK

 G. P. PUTNAM'S SONS 182 FIFTH AVENUE 1879. 

 COPYRIGHT, 1879, BY G. P. PUTNAM'S SONS. 

INTERNATIONAL COPYRIGHT. [1]

 [1] A paper read January 29th, 1878, before the New York Free-Trade Club. 

The questions relating to copyright belong naturally to the sphere ofpolitical economy. They have to do with the laws governing production, and with the principles regulating supply and demand; and they aredirectly dependent upon a due determining of the proper functions oflegislation, and of the relations which legislation, having for itsend the welfare of the community as a whole, ought to bear towardsproduction and trade. 

As students of economic science, we recognize the fact that, in allits phases, it is in reality based upon two or three very simplepropositions, such as:

Two plus two make four. 

Two from one you can't. 

That which a man has created by his own labor is his own, to do whathe will with, subject only to his proportionate contribution to thecost of carrying on the organization of the community under theprotection of which his labor has been accomplished, and to the singlelimitation that the results of his labor shall not be used to thedetriment of his fellow-men. 

It is not in the power of legislators to make or to modify the laws oftrade; it is their business to act in accordance with these laws. 

Economic science is, then, but the systematizing, on the basis of afew generally accepted principles, of the relations of men as regardstheir labor and the results of their labor, namely, their property. There is therefore an essential connection between the systemsgoverning all these relations, however varied they may be. Soundnessof thought in regard to one group of them leads to soundness ofthought about the others. 

Interested as we are in the work of bringing the community to a soundand logical standard of economic faith and practice, it is importantfor us to recognize and to emphasize the essential relationsconnecting as well the different _scientific_ positions as the varioussets of _fallacious_ assumptions. Further, we can hardly lay too muchstress upon the oft-repeated dictum that a system may be correct intheory yet pernicious in practice, maintaining, as we do, that wherethe application of a theory brings failure the result is due either tothe unsoundness of the theory or to some blundering in itsapplication. 

We claim, also, that with reference to the rights of labor, property, and capital, the free-trader is the true protectionist. It is thefree-trader who demands for the laborer the fullest, freest use ofthe results of his labor, and for the capitalist the widest scope inthe employment of his capital; and it is he who asserts that thepaternal authority which restricts the workingman in the free exchangeof the products of his craft, which limits the directions and themethods for the use of capital, appropriates--or, to speak morestrictly, destroys--a portion of the value of the labor and thecapital, and prevents the ownership from being real or complete. 

Authors are laborers, and their works are, as fully as is the casewith any other class of laborers, the results of their own productivefaculties and energies. 

Literary laborers lay claim, therefore, to the same protection for afull and free enjoyment of the results of their labors as is demandedby those who work with their hands and who are in the strict sense ofthe term manufacturers. Such enjoyment would include the right to selltheir productions in the open market where they pleased and how theypleased, and if this right to a free exchange is restricted withinpolitical boundaries, is hampered by artificial obstacles, the authoris not the full owner of his material; a portion of its value has beentaken away from him. In so far as international copyrights have notbeen established, this is the position of the author of to-day. 

Copyright is defined by Drone in his "Law of Copyright, " as "theexclusive right of the owner to multiply and to dispose of copies ofan intellectual production. " It is also used as a synonym forliterary property. Regarding literary property, Drone says:

 "There can be no property in a production of the mind unless it is expressed in a definite form of words. But the property is not in the words alone; it is in the intellectual creation, which language is merely a means of expressing and communicating. "

Copyright may therefore be said to be the legal recognition ofbrain-work as property. 

It is akin in its nature to patent-right, which is also but the legalrecognition of the existence of property in an idea, or a group ofideas, or the form of expression of an idea. 

International _patent_-rights have been recognized and carried intoeffect much more generally than have copyrights. The patentee of animproved toothpick would be able to secure to-day a wider recognitionof his right as a creator than is accorded to the author of "UncleTom's Cabin" or of "Adam Bede. "

"The existence of literary property, " says Drone, "is traced back byrecord to 1558, when an entry of copies appears in the register of theCompany of Stationers of London. " Between 1558 and 1710 there was nolegislation creating this property or confining ownership, nor anyabridging its perpetuity or restricting its enjoyment. It wasunderstood, therefore, to owe its existence to common law, and thisconclusion, arrived at by the weightiest authorities, remainedpractically unquestioned until 1774. During this earlier period therewere some instances of the recognition of literary property, but theearliest reported case concerning such property occurred in 1666, inwhich the House of Lords unanimously agreed that "a copyright was athing acknowledged at common law. " A licensing act, passed inParliament in 1674, and expiring in 1679, prohibited, under pain offorfeiture, the printing of any work without the consent of the owner. But the first act attempting to fully define and protect copyright inGreat Britain was that of 1710, known as the 8th of Anne. It wasentitled "An Act for the Encouragement of Learning, " and, declaringthat an author should have the sole right of publishing his book, prescribed penalties against any who should infringe that right. Itsevident intention was to more clearly establish, and make more easilydefensible, the rights of authors, but curiously enough it had for itseffect a very material limitation of those rights. 

It provided, namely, that copyright should be secured to the author orhis assigns for fourteen years, with a privilege of renewal to theauthor or his representatives for fourteen years longer. Thisprivilege of renewal was not conveyed to any one who might havepurchased the author's copyright. It was supposed for a long time thatthis statute had not interfered with any rights that authors mightpossess at common law, and in the oft-cited case of Millar _vs. _Taylor in 1769, in regard to a reprint of Thomson's "Seasons, " amajority of the judges of the King's Bench (including among them LordMansfield) gave it as their opinion that the act was _not_ intended todestroy, and had not destroyed, copyright at common law, but hadsimply protected it more efficiently during the periods specified. Theopinion delivered by Lord Mansfield, as chief justice of the court, remains one of the strongest and most conclusive statements of theproperty-rights of authors, and has been termed one of the grandestjudgments in English judicial literature. Its conclusion is asfollows:

 "Upon the whole, I conclude that upon every principle of reason, natural justice, morality, and common law; upon the evidence of the long received opinion of this property appearing in ancient proceedings and in law cases; upon the clear sense of the legislature, and the opinions of the greatest lawyers of their time since that statute--the right (that is in perpetuity) of an author to the copy of his work appears to be well founded, . .. And I hope the learned and industrious will be permitted from henceforth not only to reap the same, but the full profits of their ingenious labors, without interruptions, to the honor and advantage of themselves and their families. "

In 1774, in the case of Donaldson _vs. _ Beckett, the House of Lordsdecided on an appeal, first, that authors had possessed at common lawthe right of copyright in perpetuity, but, secondly, that this rightat common law had been taken away by the statute of Anne, and a termof years substituted for perpetuity. 

Chief among those who, in opposition to this decision, advised thelords that literary property was not less inviolable than any speciesof property known to the law of England, was Sir William Blackstone. The most important influence in support of the decision was exercisedby the arguments of Justice Yates and Lord Camden. "This judgment, "says Drone, "has continued to represent the law; but its soundness hasbeen questioned by very high authorities. " In 1851 Lord Campbellexpressed his agreement with the views of Lord Mansfield. In 1854, Justice Coleridge said: "If there was one subject more than anotherupon which the great and varied learning of Lord Mansfield, hisspecial familiarity with it, and the philosophical turn of hisintellect, could give his judgment peculiar weight, it was this. Irequire no higher authority for a position which seems to me in itselfreasonable and just. "

In 1841 an important debate took place in Parliament upon this sameissue. The right at common law of ownership in perpetuity was assertedby Sergeant Talfourd and Lord Mahon, and the opinion that copyrightwas the creation of statute law and should be limited to a term ofyears was defended by Macaulay. 

The conclusions of the latter were accepted by the House, and the actof 1842, which is still in force, was the result. By this act the termof copyright was fixed at forty-two years, or if at the end of thattime the author be still living, for the duration of his life. 

I have referred to these discussions as to the nature of theauthority through which the author's ownership exists or is created, as the question will be found to have an important bearing uponinternational copyright. In connection with this debate of 1842 wasframed the famous petition of Thomas Hood, which, if it were notpresented to Parliament, certainly deserved to be. It makes a fairpresentment of the author's case, and is worth quoting:

 "That your petitioner is the proprietor of certain copyrights which the law treats as copyhold, but which in justice and equity, should be his freeholds. He cannot conceive how 'Hood's Own, ' without a change in the title-deeds as well as the title, can become 'Everybody's Own' hereafter. 

 "That your petitioner may burn or publish his manuscripts at his own option, and enjoys a right in and control over his own productions which no press, now or hereafter, can justly press out of him. 

 "That as a landed proprietor does not lose his right to his estate in perpetuity by throwing open his grounds for the convenience and gratification of the public, neither ought the property of an author in his works to be taken from him, unless all parks become commons. 

 "That your petitioner, having sundry snug little estates in view, would not object, after a term, to contribute his private share to a general scramble, provided the landed and moneyed interests, as well as the literary interest, were thrown into the heap; but that in the mean time, the fruits of his brain ought no more to be cast amongst the public than a Christian woman's apples or a Jewess' oranges. 

 "That cheap bread is as desirable and necessary as cheap books; but it hath not yet been thought just or expedient to ordain that, after a certain number of crops, all corn-fields shall become public property. 

 "That, whereas in other cases long possession is held to affirm a right to property, it is inconsistent and unjust that a mere lapse of twenty-eight or any other term of years should deprive an author at once of principal and interest in his own literary fund. To be robbed by Time is a sorry encouragement to write for Futurity!

 "That a work which endures for many years must be of a sterling character, and ought to become national property; but at the expense of the public, or at any expense save that of the author or his descendants. It must be an ungrateful generation that, in its love of 'cheap copies, ' can lose all regard for 'the dear originals. '

 "That, whereas, your petitioner has sold sundry of his copyrights to certain publishers for a sum of money, he does not see how the public, which is only a larger firm, can justly acquire even a share in copyright, except by similar means--namely, by purchase or assignment. That the public having constituted itself by law the executor and legatee of the author, ought in justice, and according to practice in other cases, to take to his debts as well as his literary assets. 

 "That when your petitioner shall be dead and buried, he might with as much propriety and decency have his body snatched as his literary remains. 

 "That, by the present law, the wisest, virtuousest, discreetest, best of authors, is tardily rewarded, precisely as a vicious, seditious, or blasphemous writer is summarily punished--namely, by the forfeiture of his copyright. 

 "That, in case of infringement on his copyright, your petitioner cannot conscientiously or comfortably apply for redress to the law whilst it sanctions universal piracy hereafter. 

 "That your petitioner hath two children, who look up to him, not only as the author of the 'Comic Annual, ' but as the author of their being. That the effect of the law as regards an author is virtually to disinherit his next of kin, and cut him off with a book instead of a shilling. 

 "That your petitioner is very willing to write for posterity on the lowest terms, and would not object to the long credit; but that, when his heir shall apply for payment to posterity, he will be referred back to antiquity. 

 "That, as a man's hairs belong to his head, so his head should belong to his heirs; whereas, on the contrary, your petitioner hath ascertained, by a nice calculation, that one of his principal copyrights will expire on the same day that his only son should come of age. The very law of nature protests against an unnatural law which compels an author to write for anybody's posterity except his own. 

 "Finally, whereas it has been urged, 'if an author writes for posterity, let him look to posterity for his reward, ' your petitioner adopts that very argument, and on its very principle prays for the adoption of the bill introduced by Mr. Sergeant Talfourd, seeing that by the present arrangement posterity is bound to pay everybody or anybody but the true creditor. "

In France perpetual copyright was guaranteed from very early times. The Ordinances of Moulines of 1556, the Declaration of Charles IX. In1571, and the letters-patent of Henry III. Constituted the ancientlegislation on the subject, but the sovereign had a right to refusethe guarantee whenever he thought desirable. In 1761 the Council ofState continued to a grandson of La Fontaine the privilege that hisgrandfather possessed, on condition, however, that he should notassign it to a bookseller. The Revolution of 1789 modified thisregime, and now copyright is guaranteed to authors and their widowsduring their lives, to their children, for twenty years; and if theyleave no children, to their heirs for ten years only. According toFrench law, a French subject does not injure his copyright bypublishing his work first in a foreign country. No matter where thepublication takes place, copyright forthwith accrues in France on hisbehalf, and on the necessary deposit being effected, its infringementmay be proceeded against in a French court. Moreover, a foreignerpublishing in France will enjoy the same copyright as a native, andthis whether he has previously published in his own or in any othercountry or not. In Germany and in Austria copyright continues for theauthors life and for thirty years after his death. The longest term ofcopyright is conceded in Italy, where it endures for the life of theauthor and forty years, with a second term of forty years, duringwhich last any one can publish the work upon paying the royalty to theauthor or his assigns. The shortest term of copyright exists inGreece, where it endures for but fifteen years from publication. 

In the United States, by the law of 1831, the term is for twenty-eightyears, with the right of renewal to the author, his wife or hischildren, for fourteen years further. The renewal must be recordedwithin six months before the expiration of the first term oftwenty-eight years. 

Drone says:

 "In the United States the authorities have been divided not less than in England regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, in the case of Wheaton _vs. _ Peters, the same question came before the Supreme Court, that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774--namely, whether copyright in a published work existed by common law; and if so, whether it had been taken away by statute. 

 "The court held that the law had been settled in England to the effect that the author had no right in a published work excepting that secured by statute; that there was no common law of the United States, and that the common law as to copyright had not been adopted in Pennsylvania, in which State the cause of this action arose; and that by the copyright statute of 1790, Congress did not affirm an existing right, but created one. The opinion, which was delivered by Justice McLean, was concurred in by three of the judges, and dissented from by two, Justices Thompson and Baldwin, who defended the positions and recalled the arguments of Lord Mansfield and Sir William Blackstone. Justice Baldwin said: 'Protection is the avowed and real purpose of the act of 1790. There is nothing here admitting the construction that a new right is created . .. It is a forced and unreasonable interpretation to consider it as restricting or abolishing any pre-existing right!'"

Previous to the act of Congress of 1790, acts securing copyright toauthors for limited terms had been passed in Connecticut andMassachusetts in 1783, in Virginia in 1785, in New York in 1786, andin other States at later dates. The statute of 1790 gave copyright forfourteen years, with a renewal to the author, if living, of fourteenyears further. In 1831 was passed the act of already quoted, and in1870 the regulation went into effect that a printed title of the workcopyrighted must be filed with the Librarian of Congress beforepublication, and two copies of the complete book be delivered withinten days after publication. 

In 1874 it was provided that the form of the copyright notice in booksshould read, "Copyright, 18--, by A. B. "

The first step towards a recognition of the rights of foreign authorswas taken in 1836 by Prussia, when she prohibited the sale within herboundaries of any pirated or counterfeited editions of German works. 

In 1837 a Copyright Convention was concluded between the differentmembers of the German Confederation. In 1838 the British Parliamentpassed a law to obtain for authors the benefits of internationalcopyright, and in 1846 England entered into a convention with Prussia, in 1851 with France and Hanover, in 1854 with Belgium, and between1854 and 1860 with Holland, Italy, Switzerland, and Spain. Between1846 and 1861 similar conventions were entered into by France withBelgium, Germany, Holland, Switzerland, and Italy, and nearly all theContinental powers have now copyright arrangements with each other. Asfar as I have been able to learn, it is not requisite under thesearrangements to have a book separately entered for copyright in eachcountry. The single entry in the place of first publication issufficient to protect the author, and to leave him free to make, within a specified time, his own arrangements with foreign publishers. 

In the general copyright statutes, Parliament made no expressdistinction between native and foreign authors. The copyright wasgranted "to authors, " without any restriction as to nationality. Ithas been contended, therefore, by jurists on the one hand that theprivilege must be presumed to have been intended for British subjectsexclusively, and on the other that it of necessity belonged to allauthors, whether native or foreign. 

There were, previous to 1854, several conflicting decisions of thecourts on this question. In that year the House of Lords decided, inthe case of Jeffreys _v. _ Boosey, that a foreign author, residentabroad, was not entitled to English copyright. 

In 1868 the House of Lords, in the case of Routledge _v. _ Low, withreference to the rights of an American author who was residing inCanada at the time of the publication of his book in London, declaredthat an alien became entitled to English copyright by first publishingin the United Kingdom, provided he were, at the time of publication, anywhere within the British dominions. Drone says that "this judgmenthas continued to represent the law. "

It is certainly the case that for a few years after 1868, as aconsequence of this decision, several American authors whose bookswere being published in London, took up a temporary residence inCanada, which enabled their London publishers to enter the books forcopyright, and to pay the authors an honorarium. 

I am not able to quote any decisions that have set aside or modifiedthe above, but I have been advised by leading London publishers thatthe effect of this judgment has in some way been nullified, and that"Canada copyrights" can no longer be depended upon for protectingAmerican authors in England. 

In the United States copyright can at present be secured only by acitizen or permanent resident, and there is no regulation to preventthe use, without remuneration, of the literary property of foreignauthors. The United States is therefore at present the only countryitself possessing a literature of importance, and making a large useof the literature of the world, which has done nothing to recognizeand protect by law the rights of foreign authors of whose property itis enjoying the benefit, or to obtain a similar recognition andprotection for its own authors abroad. 

It has looked after the rights of the makers of its sewing-machines, its telephones, and its mouse-traps, but it appears to have entirelyforgotten the makers of its literature. The position taken by ourgovernment in securing for an American author the benefit of the saleof his works at home, while practically estopping him from obtainingany advantage from their sales abroad, is somewhat analogous to itstreatment of American ship-owners, who are allowed to pick up all thefreights that offer inland and along the coast, but are forbidden toearn a single penny on the high seas. 

It is not easy to understand the cause of this continued indifferenceto the claims of our literary workmen; they do not come intocompetition with the Delaware River or with any manufacturinginterests for _subsidies_; they ask simply for _markets_. 

It is true that there have been in the history of our countrygovernments which seemed impatient of the claims of any "literaryfellers;" but the majority of our administrations have shown a fairrespect for such "fellers, " and even a readiness to make use of theirservices. 

The difficulty has really been, however, not with the administrations, but with the people at large, who have failed to fairly educatethemselves on the subject, or to recognize that an internationalcopyright was called for not merely on principles of general equity, but as a matter of simple justice to American authors. 

These have suffered, and are suffering from the present state ofthings in two ways. In the first place, they lose the royalty on thesales of their books in Europe, Canada, Australia, etc. , that ought tobe secured to them by treaties of copyright reciprocity. These saleshave become, with the growth of American literature, veryconsiderable, and are each year increasing in importance. Even aquarter of a century ago there were enough American books whose famewas world-wide to have rendered a very moderate royalty on their salesa matter of great importance to their authors and to the community. "Uncle Tom's Cabin, " Irving's "Sketch-Book" and other volumes, Thompson's "Land and the Book, " Warner's "Wide, Wide World, " Webster'sDictionary, James' "Two Years before the Mast, " and Peter Parley'shistories are a few random specimens from the earlier list, which is agreat deal longer than might at first be thought. 

In an official report of the 25th Congress it was stated that up to1838 not less than 600 American works had been reprinted in England. According to the "American Facts" of G. P. Putnam, 382 American books, acknowledged to be such, were reprinted in Great Britain between 1833and 1843, while a large amount of American literary material had been"adapted, " or issued under new titles as if they had been originalBritish works. Among these last he quotes Judge Story's "Law ofBailments, " Everett's "Greek Grammar, " Bancroft's Translation ofHeeren's Histories, Dr. Harris' "Natural History, " etc. , etc. 

Secondly, the want of an international copyright has placed Americanauthors at a disadvantage because it has checked the sales of theirwares at home. Other things being equal, the publisher will, like anyother trader, manufacture such goods as will give him the largestprofit, and as he can sell the most readily. 

If he has before him an American novel on which, if he prints it, hemust pay the author a royalty, and an English novel of apparentlyequal merit, on which he is not called upon by law to pay anything, the commercial inducement is on the side of the latter. If, on thescore of patriotism or for some other reason, he may decide in favorof the former, his neighbor or rival will take the English work, andwill have advantages for underselling him. As a matter of fact, as Ishall specify further on, it is the custom of the leading publishinghouses to make some payment for the English material that theyreprint, but as they secure no legal title to such material, theycannot, as a rule, pay as much for it as they would for similarAmerican work. There is also the advantage connected with Englishworks that they usually come to the American publisher in type, inconvenient form for a rapid examination, and that he can often obtainsome English opinions about them which help him to make up his ownpublishing judgment, and are of very material assistance in securingfor the books the favorable attention of the American public. It hastherefore been the case that an American work of fiction has had to bea good deal better than a similar English work, and more marked in itsattractiveness in order to have anything like the same chance ofsuccess. And what is the case with fiction, is true, though to a lessdegree, with books for young folks and works in other departments ofliterature. It is to be said, however, that this difference in favorof English productions has been very much greater in past years thanat present, and is, I think, steadily decreasing. 

American writers have, against all disadvantages, forced their booksto the favorable attention, not only of the American but of theforeign public, and the best work is now fairly secure of a hearing. But there is no question but what the want of a copyright measure has, as above explained, operated during the past three quarters of acentury to retard and discourage the growth of American literature, especially of American fiction, and to prevent American authors fromreceiving a fair return for their labor. An international copyright isthe first step towards that long-waited-for "great American novel. "

In 1876 a Commission was appointed by the Government of Great Britain"to make inquiry in regard to the laws and regulations relating tohome, colonial, and international copyright. " The Commission was madefairly representative of the different interests to be considered, comprising among authors: Earl Stanhope, Louis Mallet, FitzjamesStephen, Edward Jenkins, William Smith, Sir Henry Holland, JamesAnthony Froude, and Anthony Trollope, and also Sir Julius Benedict forthe composers, Sir Charles Young for the dramatists, Sir John Rose andMr. Farrer for colonial interests, and Mr. F. R. Daldy for thepublishers; and it has done its work in the thorough, painstaking waywhich is characteristic of the methods of British legislation. 

It has collected during the past two years a vast mass of testimonyfrom various sources, and after full consideration has arrived at aseries of recommendations which it has presented to Parliament, andwhich will in all probability be adopted. 

It is recommended that the copyright on books, instead of holding forforty-two years from date of registration, shall endure for thelifetime of the author and for thirty years thereafter. This is thearrangement at present existing in Germany, and it has the importantadvantage that under it all the copyrights of an author will expire atthe same date. 

The Commission further recommends (and this is the recommendation mostimportant for our subject) that the right of copyright throughout theBritish dominions be extended to any author, wherever resident and ofwhatever nationality, whose work may first be published within theBritish Empire. 

With reference to the present relations of British authors with thiscountry, it uses the following words: "It has been suggested to usthat this country would be justified in taking steps of a retaliatorycharacter, with a view of enforcing, incidentally, that protectionfrom the United States which we accord to them. This might be done bywithdrawing from the Americans the privilege of copyright on firstpublication in this country. We have, however, come to the conclusionthat, on the highest public grounds of policy and expediency, it isadvisable that our law should be based on correct principles, irrespectively of the opinions or the policy of other nations. Weadmit the propriety of protecting copyright, and it appears to us thatthe principle of copyright, if admitted, is of universal application. We therefore recommend that this country should pursue the policy ofrecognizing the author's rights, irrespective of nationality. "

Here is a claim for a far-seeing, statesmanlike policy, based uponprinciples of wide equity, and planned for the permanent advantage ofliterature in England and throughout the world. Contrast with this thenarrow and local views of the following resolutions adopted at ameeting held in Philadelphia in January, 1872, with reference tointernational copyright, at which, if I remember rightly, Mr. HenryCarey Baird presided;

"I. That thought, unless expressed, is the property of the thinker" (apretty safe proposition, as, _until_ expressed, it could hardly incurany serious risk of being appropriated); "when given to the world, itis as light, free to all. 

"II. As property it can only demand the protection of the municipallaw of the country to which the thinker is subject. "

The property which would, if it still existed, most nearly approximateto such a definition as this is that in _slaves_. Twenty years ago, anAfrican chattel who was worth $1000 in Charleston became, on slippingacross to the Bermudas, as a piece of property valueless. He had nolonger a market price. 

It is this ephemeral kind of ownership, limited by accidentalpolitical boundaries, that our Philadelphia friends are willing toconcede to the work of a man's mind, the productions into which havebeen absorbed the grey matter of his brain and perhaps the best partof his life. 

"III. The author of any country, by becoming a citizen of this, andassuming and performing the duties thereof, can have the sameprotection that an American author has. "

We have already shown what an exceedingly unprotective andunremunerative arrangement it is that is accorded to the Americanauthor, and we have yet to find a single one, except perhaps Mr. Carey, who is satisfied with it. 

Why a European author, who has before him, under internationalconventions, the markets of his native country and of all the world, excepting belated America, should be expected to give up these for thepoor half-loaf of protection accorded to his American brother we canhardly understand. 

"IV. The trading of privileges to foreign authors for privileges to begranted to Americans is not just, because the interests of others thanthemselves are sacrificed thereby. "

That strikes one as a remarkable sentence to come from Philadelphia. Here are a number of American manufacturers who ask for a certain verymoderate amount of protection for their productions, and ourPhiladelphia friends, filled with an unwonted zeal for the welfare ofthe community at large, say, "No; this won't do. Prices would behigher, and _consumers_ would suffer. "

It is evident that this want of practical sympathy with these literarymanufacturers is not due to any lack of interest in the enlightenmentof the community, for the last article says:

"V. Because the good of the whole people and the safety of ourrepublican institutions demand that books shall not be made too costlyfor the multitude by giving the power to foreign authors to fix theirprice here as well as abroad. "

I think we may well doubt whether education as a whole, including theimportant branch of ethics, is advanced by permitting our citizens toappropriate, without compensation, the labor of others, while throughsuch appropriation they are also assisting to deprive our own authorsof a portion of their rightful earnings. But apart from that, theproposition, as stated, proves too much. It is fatal to all copyrightand to all patent-right. If the good of the community and the safetyof our institutions demand that, in order to make books cheap, theclaim to a compensation for the authors must be denied, why should wecontinue to pay copyrights to Longfellow and Whittier, or to thefamilies of Irving and Bryant? The so-called owners of thesecopyrights actually have it in their power, in connection with theirpublishers, to "fix the prices" of their books in this market. Thismonopoly must indeed be pernicious and dangerous when it arousesPennsylvania to come to the rescue of oppressed and impoverishedconsumers against the exactions of greedy producers, and to raise thecry of "free books for free men. "

There is certainly something refreshing in this zeal for the rights ofthe consumer, though we may doubt the equity of its application inthis particular instance; but we can nevertheless hardly be satisfiedto have an utterance like that of these resolutions quoted (as it isin the last edition of the Encyclopĉdia Britannica) as "the latestAmerican views on the subject. "

The history of the efforts made in this country to secureinternational copyright is not a long one. The attempts have been few, and have been lacking in organization and in unanimity of opinion, andthey have for the most part been made with but little apparentexpectation of any immediate success. Those interested seem to havealways felt that popular opinion was, on the whole, against them, andthat progress could be hoped for only through the slow process ofbuilding up by education and discussion a more enlightened publicsentiment. 

In 1838, after the passing of the first International Copyright Actin Great Britain, Lord Palmerston invited the American Government tocoöperate in establishing a copyright convention between the twocountries. 

In the year previous, Henry Clay, as chairman of a committee on thesubject, had reported to the Senate very strongly in favor of such aconvention, taking the ground that the author's right of property inhis work was similar to that of the inventor in his patent. 

This is a logical position for a protectionist, interested in therights of labor, to have taken, and the followers of Henry Clay, whoare to-day opposed to any measure of the kind, would do well to bearin mind this opinion of their ablest leader. 

No action was taken in regard to Mr. Clay's report or LordPalmerston's proposal. 

In 1840 Mr. G. P. Putnam issued in pamphlet form "An Argument inbehalf of International Copyright, " the first publication on thesubject in the United States of which I find record. In 1843 Mr. Putnam obtained the signatures of ninety-seven publishers, printers, and binders to a petition he had prepared, and which was dulypresented to Congress. It took the broad ground that the absence of aninternational copyright was "alike injurious to the business ofpublishing and to the best interests of the people at large. "

A memorial was presented the same year in opposition to this petition, setting forth, among other things, that an international copyrightwould "prevent the adaptation of English books to American wants. " Inthe report made by Mr. Baldwin to Congress twenty-five years later, heremarks that "the mutilation and reconstruction of American books tosuit English wants are common to a shameless extent. "

In 1853 the question of a copyright convention with Great Britain wasagain under discussion, the measure being favored by Mr. Everett, atthat time Secretary of State. Five of the leading publishing houses inNew York addressed a letter to Mr. Everett in which, while favoring aconvention, they advised--

1st. That the foreign author must be required to register the title ofhis work in the United States before its publication abroad. 

2d. That the work, to secure protection, must be issued in the UnitedStates within thirty days of its publication abroad; and

3d. That the reprint must be wholly manufactured in the United States. 

Shortly afterwards Mr. Carey published his "Letters on InternationalCopyright, " in which he took the ground that the facts and ideas in abook are the common property of society, and that property incopyright is indefensible. In 1858 a bill was introduced into theHouse of Representatives by Mr. Morris, of Pennsylvania, providing forinternational copyright on the basis of an entire remanufacture of theforeign work and its reissue by an American publisher within thirtydays of the publication abroad. The bill does not appear to havereceived any consideration. 

In March, 1868, a circular letter headed "Justice to Authors andArtists, " was issued by a Committee composed of G. P. Putnam, Dr. S. I. Prime, Henry Ivison, James Parton, and Egbert Hazard, callingtogether a meeting for the consideration of the subject ofinternational copyright. The meeting was held on the 9th of April, Mr. Bryant presiding, and a society was organized under the title of the"Copyright Association for the Protection and Advancement ofLiterature and Art, " of which Mr. Bryant was made president and E. C. Stedman secretary. The primary object of the Association was stated tobe "to promote the enactment of a just and suitable internationalcopyright law for the benefit of authors and artists in all parts ofthe world. "

A memorial had been prepared by the above-mentioned Committee to bepresented to Congress, which requested Congress to give its earlyattention to the passage of a bill "to secure in all parts of theworld the rights of authors, " etc. , but which made no recommendationsas to the details of any measure. Of the 153 signatures attached tothis memorial, 101 were those of authors, and 19 of publishers. 

In the fall of 1868 Mr. J. D. Baldwin, member of Congress fromWorcester, Mass. , reported a bill that had been prepared with theco-operation of the Executive Committee of the Copyright Association, which provided, That a foreign work could secure a copyright in thiscountry provided it was wholly manufactured here and should be issuedfor sale by a publisher who was an American citizen. The benefit ofthe copyright was also limited to the author and his assigns. 

The bill was recommitted to the Joint Committee on the Library, and noaction was taken upon it. The members of this Committee were SenatorsE. D. Morgan, of New York, Howe, of Wisconsin, and Fessenden, ofMaine, who were opposed to the measure, and Representatives Baldwin, of Massachusetts, Pruyn, of New York, and Spalding, of Ohio, who werein favor of it. The bill was also to have been supported in the Houseby Michael C. Kerr, of Indiana. Mr. Baldwin explains that an importantcause for the shelving of the measure without debate was theimpeachment of President Johnson, which was at that time absorbing theattention of Congress and the country. No general expression ofopinion was therefore elicited upon the question from either Congressor the people, and in fact the question has never reached such a stageas to enable such an expression of public opinion to be arrived at. 

It is my own belief that if the issue were fairly presented to them, the American people could be trusted to decide it honestly and wisely. 

The active members of the committee of the Copyright Association, under whose general suggestions this bill of Mr. Baldwin's had beenframed, were Dr. S. Irenĉus Prime, George P. Putnam, and James Parton. Dr. Prime published in _Putnam's Magazine_ in May, 1868, a paper onthe "Right of Copyright, " which remains perhaps the most concise andcomprehensive statement of the principles governing the question, andwhich sets forth very clearly the necessary connection between Carey'sdenial of the right of property in books and Proudhon's claim that allproperty is robbery. In 1871 Mr. Cox of New York introduced a billwhich was practically identical with Mr. Baldwin's measure, and whichwas also recommitted to the Library Committee. In 1872 the new LibraryCommittee called upon the publishers and others interested to aid inframing a bill. 

A meeting of the publishers was called in New York, which was attendedby but one firm outside of New York; the majority of the firms presentwere in favor of the provisions of Mr. Cox's bill, already referredto. The report was dissented from by a large minority on the groundthat the bill was in the interests of the publishers rather than thatof the public; that the prohibition of the use of foreign stereotypesand electrotypes of illustrations was an economic absurdity; and thatan English publishing house could in any case, through an Americanpartner, retain control of the American market. The report of theminority was prepared by Mr. Edward Seymour, of Scribner, Armstrong &Co. During the same week a bill was drafted by Mr. C. A. Bristed, representing more especially the views of the authors in theInternational Copyright Association, which provided simply that "allrights of property secured to citizens of the United States byexisting copyright laws are hereby secured to the citizens andsubjects of every country the government of which secures reciprocalrights to the citizens of the United States. " The same result as thataimed at in Mr. Bristed's bill would have been obtained by theadoption of the recommendation made by Mr. J. A. Morgan in his work on"The Law of Literature, " published in 1876. He suggested that thepresent copyright law be amended by simply inserting the word "person"in place of "citizen, " in which case its privileges would at once besecured to any authors, of whatever nationality, who complied with itsrequirements. 

A few weeks later the meeting was held in Philadelphia whoseresolutions in opposition to international copyright (which, as wehave shown, were equally forcible against any copyright) we havealready quoted. 

These four reports were submitted to the Library Committee ofCongress, together with one or two individual measures, of which themost noteworthy were those of Harper & Bros. , and of John P. Morton, bookseller, of Louisville. 

Messrs. Harper, in a letter presented by their counsel, objected toany measure of international copyright on the broad ground that itwould "add to the price of books and interfere with the education ofthe people. " This consideration is of course open to the samecriticism as the Philadelphia platform; it is equally forcible againstany copyright whatever. As Thomas Hood says, "cheap _bread_ is asdesirable and necessary as cheap books, " but one does not on thatground appropriate the farmer's wheat-stacks!

Mr. Morton was in favor of an arrangement that should give to anydealer the privilege of reprinting a foreign work, provided he wouldcontract to pay to the author or his representative 10 per cent of thewholesale price of such work. He advised also that the American marketshould be left open to the foreign edition, so that the competitionshould be perfectly unrestricted. 

The proposition that all dealers who would contract to pay to theauthor a royalty (to be fixed by law) should be at liberty toundertake the publication of a work was at a later date presented tothe British Commission by Mr. Farrer and Sir Henry Holland, first withreference to home copyright, and secondly as a suggestion for aninternational arrangement. In this last shape the writer had theopportunity, in 1876, of presenting to the Commission someconsiderations against it. These will be referred to further on. 

A similar suggestion formed the basis of a measure submitted in 1872by Mr. Elderkin, of New York, to the Library Committee of Congress, and known afterwards as the Sherman Bill. 

In view of the wide diversity of the plans and suggestions presentedto this Committee, there was certainly some ground for the statementmade in his report by the chairman, Senator Lot M. Morrill, of Maine, that "there was no unanimity of opinion among those interested in themeasure. " He maintained, further, that an international copyright wasnot called for by reasons of general equity or of constitutional law;that the adoption of any plan which had been proposed would be of verydoubtful advantage to American authors, and would not only be anunquestionable and permanent injury to the interests engaged in themanufacture of books, but a hindrance to the diffusion of knowledgeamong the people, and to the cause of American education. 

This report closed for the time the consideration of the subject. 

The efforts in behalf of international copyright have been always moreor less hampered by the question being confused with that of aprotective tariff. 

The strongest opposition to a copyright measure has as a rule comefrom the protectionists. Richard Grant White said in 1868: "Therefusal of copyright in the United States to British authors is infact, though it is not so avowed, a part of the 'American' protectivesystem. " And again: "With free trade we shall have just internationalcopyright. "

It would be difficult, however, for the protectionists to show logicalgrounds for their position. American authors are manufacturers, who aresimply asking, first, that they shall not be undersold in their homemarket by goods imported from abroad on which no (ownership) duty hasbeen paid, --which have, namely, been simply "appropriated;" andsecondly, that the government may facilitate their efforts to secure asale for their own goods in foreign markets. These are claims withwhich a protectionist who is interested in developing American industryought certainly to be in sympathy. 

The contingency that troubles him, however, is the possibility that, if the English author is given the right to sell his books in thiscountry the copies sold may be to a greater or less extentmanufactured in England, and the business of making these copies maybe lost to American printers, binders, and paper men. He is namely, much more concerned for the protection of the makers of the _materialcasing_ of the book than for that of the author who creates itsessential substance. 

It is evidently to the advantage of the consumer, upon whose intereststhe Philadelphia resolutions laid so much stress, that the labor ofpreparing the editions of his books be economized as much as possible. 

The principal portion of the cost of a first edition of a book is thesetting of the type, or, if the work is illustrated, in the setting ofthe type and the designing and engraving of the illustrations. 

If this first cost of stereotyping and engraving can be divided amongseveral editions, say one for Great Britain, one for the UnitedStates, and one for Canada and the other colonies, it is evident thatthe proportion to be charged to each copy printed is less, and thatthe selling price per copy can be smaller, than would be the case ifthis first cost has got to be repeated in full for each market. 

It is then to the advantage of the consumer that, whatever copyrightarrangement be made, nothing shall stand in the way of foreignstereotypes and illustrations being duplicated for use here wheneverthe foreign edition is in such shape as to render this duplicating anadvantage and a saving in cost. 

The few protectionists who have expressed themselves in favor of aninternational copyright measure, and some others who have fears as toour publishing interests being able to hold their own against any opencompetition, insist upon the condition that foreign works to obtaincopyright must be wholly remanufactured and republished in thiscountry. 

We have shown how such a condition would, in the majority of cases, becontrary to the interests of the American consumer, while the Britishauthor is naturally opposed to it because, in increasing materiallythe outlay to be incurred by the American publisher in the productionof his edition, it proportionately diminishes the profits or prospectsof profits from which is calculated the remuneration that can be paidto the author. 

The measure of permitting the foreign book to be reprinted by alldealers who would contract to pay the author a specified royalty hasat first sight something specious and plausible about it. It seems tobe in harmony with the principles of freedom of trade, in which we arebelievers. It is, however, directly opposed to those principles;first, it impairs the freedom of contract, preventing the producerfrom making such arrangements for supplying the public as seem best tohim; and secondly, it undertakes, by paternal legislation, to fix theremuneration that shall be given to the producer for his work, and tolimit the prices at which this work shall be furnished to theconsumer. There is no more equity in the government's undertaking thislimitation of the producer and protection of the consumer in the caseof _books_ than there would be in that of bread or of beef. 

Further, such an arrangement would be of benefit to neither theauthor, the public, nor the publishers, and would, we believe, make ofinternational copyright, and of any copyright, a confusing and futileabsurdity. 

A British author could hardly obtain much satisfaction from anarrangement which, while preventing him from having his Americanbusiness in the hands of a publishing house selected by himself, andof whose responsibility he could assure himself, threw open the use ofhis property to any dealers who might choose to scramble for it. Hecould exercise no control over the style, the shape, or the accuracyof his American editions; could have no trustworthy information as tothe number of copies the various editions contained; and if he weretenacious as to the collection of the royalties to which he wasentitled, he would be able in many cases to enforce his claims onlythrough innumerable lawsuits, and he would find the expenses of thecollection exceed the receipts. 

The benefit to the public would be no more apparent. Any gain in thecheapness of the editions produced would be more than offset by theirunsatisfactoriness: they would, in the majority of cases, beuntrustworthy as to accuracy or completeness, and be hastily andflimsily manufactured. A great many enterprises, also, desirable inthemselves, and that would be of service to the public, no publishercould, under such an arrangement, afford to undertake at all, as, ifthey proved successful, unscrupulous neighbors would, through rivaleditions, reap the benefit of his judgment and his advertising. Infact, the business of reprinting would fall largely into the hands ofirresponsible parties, from whom no copyright could be collected. 

The arguments against a measure of this kind are, in short, thearguments in favor of international copyright. A very conclusivestatement of the case against the equity or desirability from anypoint of view of such an arrangement in regard to home copyright wasmade before the British Commission, in 1877, by Herbert Spencer. Histestimony is given in full in the _Popular Science Monthly_ forNovember, 1878, and February, 1879. 

The recommendation had been made that, for the sake of securing cheapbooks for the people, the law should give to all dealers the privilegeof printing an author's books, and should fix a copyright to be paidto the author that should secure him a "fair profit for his work. " Mr. Spencer objected that--

First. This would be a direct interference with the laws of trade, under which the author had the right to make his own bargains. Second. No legislature was competent to determine what was "a fair rate ofprofit" for an author. Third. No average royalty could be determinedwhich could give a fair recompense for the different amounts and kindsof labor given to the production of different classes of books. Fourth. If the legislature has the right to fix the profits of theauthor, it has an equal right to determine that of his associate inthe publication, the publisher; and if of the publisher, then also ofthe printer, binder, and paper-maker, who all have an interest in theundertaking. Such a right of control would apply with equal force tomanufacturers of other articles of importance to the community, andwould not be in accordance with the present theories of the properfunctions of government. Fifth. If books are to be cheapened by such ameasure, it must be at the expense of some portion of the profits nowgoing to the authors and publishers; the assumption is that bookproducers and distributors do not understand their business, butrequire to be instructed by the state how to carry it on, and that thepublishing business alone needs to have its returns regulated by law. Sixth. The prices of the best books would in many cases, instead ofbeing lessened, be higher than at present, because the publisherswould require some insurance against the risk of rival editions, andbecause they would make their first editions smaller, and the firstcost would have to be divided among a less number of copies. Suchreductions of prices as would be made would be on the flimsier andmore popular literature, and even on this could not be lasting. Seventh. For the enterprises of the most lasting importance to thepublic, requiring considerable investment of time and capital, thepublishers require to be assured of returns from the largest marketpossible, and without such security enterprises of this charactercould not be undertaken at all. Eighth. Open competition of this kindwould, in the end, result in crushing out the smaller publishers, andin concentrating the business in the hands of a few houses whosepurses had been long enough to carry them through the long andunprofitable contests that would certainly be the first effect of suchlegislation. 

All the considerations adduced by Mr. Spencer have, of course, equalforce with reference to open international publishing, while they mayalso be included among the arguments in behalf of internationalcopyright. 

With these views of a veteran writer of books may very properly beassociated the opinions of the experienced publisher, Mr. Wm. H. Appleton, who, in a letter to the New York _Times_ in 1872, says:

"The first demand of property is for security. .. . To publish a book inany real sense--that is, not merely to print it, but to make it welland widely known--requires much effort and large expenditure, andthese will not be invested in a property which is liable to bedestroyed at any moment. Legal protection would thus put an end toevil practices, make property secure, business more legitimate, andgive a new vigor to enterprise. Nor can a policy which is unjust tothe author, and works viciously in the trade, be the best for thepublic. The publisher can neither afford to make the book sothoroughly known, nor can he put it at so low a price, as if he couldcount upon permanent and undisturbed possession of it. Many valuablebooks are not reprinted at all, and therefere are only to be had atEnglish prices, for the same reason that publishers are cautious aboutrisking their capital in unprotected property. "

The copy-book motto, "Honesty is the best policy, " fails often enoughto come true (at least as to material results) in the case of theindividual, simply because his life is not always long enough to givean opportunity for all the results of his actions to be arrived at. The community, however, in its longer life, is subject to the fullinfluence of the certain though sometimes slow-working relations ofcause to effect, relations which, among other things, bring out theessential connection between economics and ethics, and which show inthe long-run the just method to be the wise method. An enlightenedself-interest finds out the advantage of equity. If the teaching ofhistory makes anything evident, it is that in the transactions of anation, honesty _pays_, even in the narrowest and most selfish senseof the term, and nothing but honesty can ever pay. Among the manyclasses of interests to which this applies international copyrightcertainly belongs. 

Rejecting the Elderkin-Sherman suggestion of an open market forrepublishing as in no way effecting the objects desired; theBaldwin-Cox plan of giving protection only to books of which the typehad been set and the printing done in this country, as narrow inprinciple and uneconomic in practice; and the Bristed-Morganproposition to extend the right of copyright without limitation orrestriction, as not giving sufficient consideration to the businessrequirements, and as at present impracticable to carry into effect--wewould recommend a measure based upon the suggestion of the BritishCommission, coupled with one or two of the provisions that have beenincluded in the several American schemes:

1. That the title of the foreign work be registered in the UnitedStates simultaneously with its publication abroad. 

2. That the work be republished in the United States within six monthsof its publication abroad. 

3. That for a limited term, say ten years, the stipulation should bemade that the republishing be done by an American citizen. 

4. That for the same term of years the copyright protection be givento those books only that have been printed and bound in this country, the privilege being accorded of importing foreign stereotypes andelectrotypes of cuts. 

5. That, subject to these provisions, the foreign author or hisassigns shall be accorded the same privileges now conceded to anAmerican author. 

I believe that, in the course of time, the general laws of trade wouldand ought to so regulate the arrangements for supplying the Americanpublic with books that, if there were no restriction as to thenationality of the publisher or as to the importation of printedvolumes, the author would select the publishing agent, English orAmerican, who could serve him to best advantage; and that that agentwould be found to be the man who would prepare for the largestpossible circle of American readers the editions best suited to theirwants. 

The foreign author would before long recognize that it was to hisinterest to be represented by the publisher who understood the marketmost thoroughly and who had the best facilities for supplying it. IfEnglish publishers, settling here, could excel our American houses inthis understanding and in these facilities, they ought to be atliberty to do so, and it would be for the interest of the public thatno hindrances should be placed in their way. 

The experience of our American houses, however, who have had businesswith English authors and publishers is that it takes some little timefor them to obtain a clear perception of the requirements of theAmerican market and of American readers, and of the very materialdifferences existing between the status here and in Great Britain. Andit would be my fear that, if the copyright were granted at oncewithout restriction, there would be an interregnum of some years, during which these authors and publishers were obtaining theirAmerican education, before the American readers could obtain freelythe books they wanted in the editions they were willing to purchase. 

Our friends on the other side could not resist the temptation ofexperimenting, before providing what was really wanted, as to how longour market would stand their expensive $7, $5, and $3 editions ofbooks that we have been accustomed to buy here for $2. 50, $2, and $1;and as a consequence, they would sell books by dozens or hundreds thatought to be sold by thousands; their authors would receive aninconsiderable copyright, and the American public would be badlyserved and would become indignant. 

But if the channels of communication between the English authors andtheir American readers were once fairly established, as they would be, I think, under the arrangements suggested, it would not, I believe, bepossible at a later date to interfere with them, even if allrestrictions were removed. When American readers were buying bythousands a suitable edition, at a moderate price, of a work by astandard English author who was himself receiving a good return fromhis enlarged sales, this author would be as little likely, at theexpiration of the ten years, to restrict those sales by insisting thathis work should be sold here in the costly and unsuitable Englishedition, as to stipulate that it should be sold here in a Russiantranslation. It is probable, also, that the including in the measureof these restrictions, even if but for a limited term of years, wouldgain for it some support that would be important for its success. Itseems probable that, if the present conditions of trade aremaintained, American book-makers need not be especially troubled tenyears hence by the competition of books manufactured in England, andthat, if the various duties affecting the manufacture could beabolished, we could well spare the duty on books themselves. 

I can, however, imagine no state of affairs in which it would beeconomical or desirable to insist upon two settings of type for a bookdesigned for different groups of English-speaking readers; and themore generally this first and most important part of the cost of abook can be economized by being divided between the two markets, thegreater the advantage in the end to author, public, and publisher. 

A proposition will doubtless be made in the course of a year by theBritish Government for the appointment of an International Commissionfor a fresh consideration of the subject, and our government ought toprepare for this International Commission by the early appointment ofa Home Commission to give due consideration to the several interestsinvolved in the question, to collect again the different sets ofopinions, and to harmonize these as far as practicable. 

By the time our English friends are ready to talk the matter with us, we ought to have informed ourselves definitely as to what kind of ameasure is on the whole most desirable, and how much of this it is atthis present time practicable to carry into effect. 

There has undoubtedly during the past ten years been a growth ofenlightened public sentiment on the question, but I should still beindisposed to entrust its settlement to the House of Representatives, and should suppose that it could probably be handled to best advantageby the Senate in the shape of a treaty. 

It is due to American publishers to explain that, in the absence of aninternational copyright, there has grown up among them a custom ofmaking payments to foreign authors which has become, especially duringthe last twenty-five years, a matter of very considerable importance. Some of the English authors who testified before the BritishCommission stated that the payments from the United States for theirbooks exceeded their receipts in Great Britain. These payments secureof course to the American publisher no title of any kind to the books. In some cases they obtain for him the use of advance sheets by meansof which he is able to get his edition printed a week or two inadvance of any unauthorized edition that might be prepared. In manycases however, payments have been made some time after the publicationof the works, and when there was no longer even the slight advantageof "advance sheets" to be gained from them. 

While the authorization of the English author can convey no title ormeans of defence against the interference of rival editions, theleading publishing houses have, with very inconsiderable exceptions, respected each others' arrangements with foreign authors, and theeditions announced as published "by arrangement with the author, " andon which payments in lieu of copyright have been duly made, have beenas a rule not interfered with. This understanding among the publishersgoes by the name of "the courtesy of the trade. " I think it is safe tosay that it is to-day the exception for an English work of any valueto be published by any reputable house without a fair and often a veryliberal recognition being made of the rights (in equity) of theauthor. 

In view of the considerable amount of harsh language that has beenexpended in England upon our American publishing houses, and theopinion prevailing in England that the wrong in reprinting is entirelyone-sided, it is in order here to make the claim, which can, Ibelieve, be fully substantiated, that in respect to the recognition ofthe rights of authors unprotected by law, their record has during thepast twenty-five years been in fact better than that of their Englishbrethren. They have become fully aroused in England to the fact thatAmerican literary material has value and availability, and each year alarger amount of this material has had the honor of being introducedto the English public. According to the statistics of 1878, ten percent of the works issued in England in that year were Americanreprints. The acknowledgments, however, of any rights on the part ofAmerican authors have been few and far between, and the payments butinconsiderable in amount. The leading English houses would doubtlessvery much prefer to follow the American practice of paying for theirreprinted material, but they have not succeeded in establishing anygeneral understanding similar to our American "courtesy of the trade, "and books that have been paid for by one house are, in a large numberof cases, promptly reissued in cheaper rival editions by other houses. It is very evident that, in the face of open and unscrupulouscompetition, continued or considerable payments to authors aredifficult to provide for; and the more credit is due to those firmswho have, in the face of this difficulty, kept a good record withtheir American authors. 

One London publisher in London made a custom for years of sending aliberal remittance to the author of the "Wide, Wide World" for eachnew volume sent to him. But the competition of the unauthorizededitions had proved so sharp that he told me he got no profit from hispurchases, and did not see how he could continue them. 

The fate of the author of "Helen's Babies" was still harder. Of hisfirst book seven editions were issued by different British houses, aggregating together an enormous sale, from which he received hardly apenny. For the advance sheets of the sequel to this one firm paid him£50. But so fierce was the scramble for it among the half dozen ormore publishers who hurried through their reprints from the Americanjournal in which it was appearing as a serial, that one energetichouse sent it out to the British public minus the concluding chapter, while another, still more enterprising, had the last chapter of hisedition added by an English hand, and the moral of the story wasentirely transformed. 

Of the books of Longfellow, Lowell, Holmes, Mrs. Prentiss, Mark Twain, Dr. Mayo, Miss Phelps, Miss Alcott, Mrs. Stowe, Bayard Taylor, andmost of our more popular authors, there are, in like manner, variousrival editions, and no one house, however good its intentions, canafford to make a practice of paying these authors, as its neighborscannot be depended upon to respect its arrangements. 

On the other hand, the leading English authors, like George Eliot, Miss Mulock, William Black, R. D. Blackmore, Wilkie Collins, ThomasHardy, Mrs. Alexander, Tyndall, Huxley, and very many others, havereceived and are receiving liberal payments from their Americanpublishers, who are accustomed, as I have said, not to interfere witheach others' purchases. 

In past years there have been sharp criticisms on the other side of anAmerican habit of "adapting" and reshaping English books, so that theauthors, in addition to the grievance of receiving no compensation fortheir American editions, had the further cause for complaint thatthese editions were not trustworthy and did not fairly represent theirproductions. It was also charged that English material wasoccasionally "annexed" bodily by American authors, without any creditbeing given. For both sets of charges there have doubtless beengrounds, but the instances have certainly during the past quartercentury grown very much fewer. Indeed, the last kind of appropriationwould to-day be almost impossible, as the knowledge of English currentliterature is so thorough that detection would follow at once. "Appropriated" material could not be sold. In England, however, whileAmerican literature is, as I have shown, beginning to be appreciated, it is not yet at all thoroughly known, and there is therefore muchless risk in making use of it. As a matter of fact it has been so madeuse of by literary hacks to a considerable extent, and there are someamusing instances in which the English publishers and English criticshave been imposed upon by material that was _not_ original. Mr. Randolph, the publisher, relates how he was innocently led to reprintsome essays brought to him by an English friend, which seemed to himvery fresh and original, and which proved to have been taken bodilyfrom one of Henry Ward Beecher's volumes. Mr. Randolph promptly calledMr. Beecher's attention to his own felonious conduct, and handed him acheck for the considerable amount due him for copyright on the sales. 

A translation by Charlton T. Lewis of Bengel's "Gnomon of the NewTestament" was reprinted in London as the work of "two clergymen ofthe Church of England. " Mr. Lewis' version was followed verbatim, withthe single exception of the omission of some Latin quotations. 

Dr. S. Irenĉus Prime had sent to him a volume bearing the name of anEnglish author, with the inquiry as to whether, in his judgment, itwas likely to prove of interest for American readers. He found he washardly in a position to give an impartial answer to the inquiry, asthe book was one of _his own_, for several editions of which theAmerican public had already shown a hearty appreciation. 

These are but incidental examples of one kind of appreciation that hasbeen accorded to American literary work, which may be complimentarybut can hardly be called satisfactory. I refer to them not becausethey can be considered as any legitimate extenuation of similarAmerican misdeeds, for I do not admit that in questions of equity, the_tu quoque_ forms any argument or defence. They are worth mentioningonly for the sake of emphasizing to our English friends, what theyhave not fairly appreciated, that there are at least two sides to theevil of the present state of things, and that the demoralizationproduced by it has not been confined to our side of the Atlantic. These instances of misappropriation are not of course fairlyrepresentative of the English publishing or literary fraternity, anymore than similar American instances, which have formed the text ofvarious English homilies, can be accepted as indicating the standardof literary and trade morality with us. We Americans simply say forourselves that the evils and demoralizing tendencies of the lack ofinternational agreements are fully recognized by us, and that whilecertain conditions of manufacturing have heretofore formed atroublesome obstacle in the way of the establishing of such agreement, we are glad to believe that this obstacle is now in a fair way ofbeing overcome. In the meantime, we claim that, in the absence of law, our American publishers, especially those of the present generation, have, of their own free will, given to English authors a large part ofthe advantage that a law would have secured to them, and have donethis without any corresponding advantage of protection forthemselves. 

We are also fully appreciative of the credit due to such of theEnglish houses as (in the face of perhaps greater difficulties) havemade similar efforts to do justice to American authors. 

One of the not least important results to be looked for frominternational copyright is a more effective co-operation in their workon the part of the publishers of the two great English-speakingnations. They will find their interest and profit in working together, and the very great extension that may be expected in the custom of ajoint investment in the production of books for both markets willbring a very material saving in the first cost, a saving in theadvantage of which authors, publishers, and public will alike share. 

It seems probable that the "courtesy of the trade" which has madepossible the present relations between American publishers and foreignauthors is not going to retain its effectiveness. Within the last yearcertain "libraries" and "series" have sprung into existence, whichpresent in cheaply-printed pamphlet form some of the best of recentEnglish fiction. Those who conduct them reap the advantage of theliterary judgment and foreign connections of the older publishinghouses, and, taking possession of material that has been carefullyselected and liberally paid for, are able to offer it to the public atprices which are certainly low as compared with those of bound booksthat have paid copyright, but are doubtless high enough forliterature that is so cheaply obtained and so cheaply printed. 

These enterprises have been carried on by concerns which have notheretofore dealt in standard fiction, and which are not prepared torespect the international arrangements or trade courtesies of theolder houses. 

To one of the "cheap series" the above remarks do not apply. The"Franklin Square Library" is published by a house which makes apractice of paying for its English literary material, and which laysgreat stress upon "the courtesy of the trade. " It is generallyunderstood by the trade that this series was planned, not so much as apublishing investment, as for purposes of self-defence, and that itwould in all probability not be continued after the necessity forself-defence had passed by. A good many of its numbers include worksfor which the usual English payments have been made, and it is veryevident that, in this shape, books so paid for cannot secure aremunerative sale. It seems safe to conclude, therefore, that theirpublication is not, in the literal sense of the term, a _business_investment, and that the undertaking is not planned to be permanent. 

A very considerable business in cheap reprints has also sprung up inToronto, from which point are circulated throughout the Western Statescheap editions of English works for the "advance sheets" and "Americanmarket, " of which Eastern publishers have paid liberal prices. Someenterprising Canadian dealers have also taken advantage of thepresent confusion between the United States postal and customsregulations to build up a trade by supplying through the mailsreprints of _American copyright works_, in editions which, beingflimsily printed, and free of charge for copyright, can be sold atvery moderate prices indeed. 

It is very evident that, in the face of competition of this kind, thepayments by American publishers to foreign writers of fiction must bematerially diminished, or must cease altogether. These pamphlet serieshave, however, done a most important service in pointing out theabsurdity of the present condition of literary property, and inemphasizing the need of an international copyright law. In connectionwith the change in the conditions of book-manufacturing before alludedto, they may be credited as having influenced a material modificationof opinion on the part of publishers who have in years past opposed aninternational copyright as either inexpedient or unnecessary, but whoare now quoted as ready to give their support to any practicable andequitable measure that may be proposed. 

I have endeavored to give in the foregoing pages an outline sketch ofthe history and present position of the question of internationalcopyright, and to briefly indicate some of the relations in which itstands to ethics and political economy. 

We may, I trust, be able, at no very distant period, to look backupon, as exploded fallacies of an antiquated barbarism, the beliefsthat the material prosperity of a community can be assured bysurrounding it with Chinese walls of restrictions to prevent it frompurchasing in exchange for its own products its neighbors' goods, andthat its moral and mental development can be furthered by the freeexercise of the privilege of appropriating its neighbors' books. 

 * * * * *

 FREE TRADE, AS PROMOTING PEACE

 AND

 GOOD WILL AMONG MEN. 

 _A paper read before the New York Free Trade Club, Feb. 20, 1879, by Charles L. Brace. _

To the moralist, Free Trade is not most of all important as a means ofproducing and distributing wealth, (though in that it be the mostefficient) but rather as a portion of that movement of humanity which, receiving its greatest impulse eighteen centuries ago, has beensteadily ever since removing prejudices, lightening burdens, doingaway with abuses, and bringing together into one, different classesand peoples and races. Living under the influence of this great humaneimpulse, we do not enough remember what effects it has alreadyaccomplished, what slow but permanent victories it has won, and whatit proves itself adapted to win in the centuries to come. 

It will better show us what changes await the world in such parts ofits progress as relate to Free Trade, to note, briefly, a few of theimprovement wrought by the spirit of humanity and by right reason inEurope during the last thousand years.