LITERARY COPYRIGHT

By Charles Dudley Warner

This is the first public meeting of the National Institute of Arts andLetters. The original members were selected by an invitation from theAmerican Social Science Association, which acted under the power of itscharter from the Congress of the United States. The members thusselected, who joined the Social Science Association, were given thealternative of organizing as an independent institute or as a branch ofthe Social Science Association. 

At the annual meeting of the Social Science Association on September 4, 1899, at Saratoga Springs, the members of the Institute voted to organizeindependently. They formally adopted the revised constitution, which hadbeen agreed upon at the first meeting, in New York in the precedingJanuary, and elected officers as prescribed by the constitution. 

The object is declared to be the advancement of art and literature, andthe qualification shall be notable achievements in art or letters. Thenumber of active members will probably be ultimately fixed at onehundred. The society may elect honorary and associate members withoutlimit. By the terms of agreement between the American Social ScienceAssociation and the National Institute, the members of each are 'ipsofacto' associate members of the other. 

It is believed that the advancement of art and literature in this countrywill be promoted by the organization of the producers of literature andart. This is in strict analogy with the action of other professions andof almost all the industries. No one doubts that literature and art areor should be leading interests in our civilization, and their dignitywill be enhanced in the public estimation by a visible organization oftheir representatives, who are seriously determined upon raising thestandards by which the work of writers and artists is judged. Theassociation of persons having this common aim cannot but stimulateeffort, soften unworthy rivalry into generous competition, and promoteenthusiasm and good fellowship in their work. The mere coming together tocompare views and discuss interests and tendencies and problems whichconcern both the workers and the great public, cannot fail to be ofbenefit to both. 

In no other way so well as by association of this sort can be created thefeeling of solidarity in our literature, and the recognition of itspower. It is not expected to raise any standard of perfection, or in anyway to hamper individual development, but a body of concentrated opinionmay raise the standard by promoting healthful and helpful criticism, bydiscouraging mediocrity and meretricious smartness, by keeping alive thetraditions of good literature, while it is hospitable to all discoverersof new worlds. A safe motto for any such society would be Tradition andFreedom--'Traditio et Libertas'. 

It is generally conceded that what literature in America needs at thismoment is honest, competent, sound criticism. This is not likely to beattained by sporadic efforts, especially in a democracy of letters wherethe critics are not always superior to the criticised, where the man infront of the book is not always a better marksman than the man behind thebook. It may not be attained even by an organization of men united uponcertain standards of excellence. I do not like to use the word authority, but it is not unreasonable to suppose that the public will be influencedby a body devoted to the advancement of art and literature, whosesincerity and discernment it has learned to respect, and admission intowhose ranks will, I hope, be considered a distinction to be sought for bygood work. The fashion of the day is rarely the judgment of posterity. You will recall what Byron wrote to Coleridge: "I trust you do not permityourself to be depressed by the temporary partiality of what is called'the public' for the favorites of the moment; all experience is againstthe permanency of such impressions. You must have lived to see many ofthese pass away, and will survive many more. "

The chief concern of the National Institute is with the production ofworks of art and of literature, and with their distribution. In theremarks following I shall confine myself to the production anddistribution of literature. In the limits of this brief address I canonly in outline speak of certain tendencies and practices which areaffecting this production and this distribution. The interests involvedare, first, those of the author; second, those of the publisher; third, those of the public. As to all good literature, the interests of thesethree are identical if the relations of the three are on the properbasis. For the author, a good book is of more pecuniary value than a poorone, setting aside the question of fame; to the publisher, the right ofpublishing a good book is solid capital, --an established house, in thelong run, makes more money on "Standards" than on "Catchpennies"; and tothe public the possession of the best literature is the breath of life, as that of the bad and mediocre is moral and intellectual decadence. Butin practice the interests of the three do not harmonize. The author, evensupposing his efforts are stimulated by the highest aspirations forexcellence and not by any commercial instinct, is compelled by hiscircumstances to get the best price for his production; the publisherwishes to get the utmost return for his capital and his energy; and thepublic wants the best going for the least money. 

Consider first the author, and I mean the author, and not the merecraftsman who manufactures books for a recognized market. His solecapital is his talent. His brain may be likened to a mine, gold, silver, copper, iron, or tin, which looks like silver when new. Whatever it is, the vein of valuable ore is limited, in most cases it is slight. When itis worked out, the man is at the end of his resources. Has he expended orproduced capital? I say he has produced it, and contributed to the wealthof the world, and that he is as truly entitled to the usufruct of it asthe miner who takes gold or silver out of the earth. For how long? I willspeak of that later on. The copyright of a book is not analogous to thepatent right of an invention, which may become of universal necessity tothe world. Nor should the greater share of this usufruct be absorbed bythe manufacturer and publisher of the book. The publisher has a clearright to guard himself against risks, as he has the right of refusal toassume them. But there is an injustice somewhere, when for many a book, valued and even profitable to somebody, the author does not receive theprice of a laborer's day wages for the time spent on it--to say nothingof the long years of its gestation. 

The relation between author and publisher ought to be neither complicatednor peculiar. The author may sell his product outright, or he may sellhimself by an agreement similar to that which an employee in amanufacturing establishment makes with his master to give to theestablishment all his inventions. Either of these methods is fair andbusinesslike, though it may not be wise. A method that prevailed in theearly years of this century was both fair and wise. The author agreedthat the publisher should have the exclusive right to publish his bookfor a certain term, or to make and sell a certain number of copies. Whenthose conditions were fulfilled, the control of the property reverted tothe author. The continuance of these relations between the two depended, as it should depend, upon mutual advantage and mutual good-will. By thepresent common method the author makes over the use of his property tothe will of the publisher. It is true that he parts with the use only ofthe property and not with the property itself, and the publisher in lawacquires no other title, nor does he acquire any sort of interest in thefuture products of the author's brain. But the author loses all controlof his property, and its profit to him may depend upon his continuing tomake over his books to the same publisher. In this continuance he isliable to the temptation to work for a market, instead of following thefree impulses of his own genius. As to any special book, the publisher isthe sole judge whether to push it or to let it sink into the stagnationof unadvertised goods. 

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

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

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

In the first place let me bring to your attention what is, to the vastbody of authors, a subject of vital interest, which it is not too much tosay has never received that treatment from authors themselves which itsimportance demands. I refer to the property of authors in theirproductions. In this brief space and time I cannot enter fully upon thisgreat subject, but must be content to offer certain suggestions for yourconsideration. 

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

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

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

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

Another consideration follows here. Why should the ownership of a bushelof wheat, a piece of silk goods, a watch, or a handkerchief in thepossession of an American carried or sent to England, or brought thenceto this country, be absolute and unlimited, while the ownership of hisown products as an author or as a purchaser from an author is madedependent on his nationality? Why should the property of the manufacturerof cloths, carpets, satins, and any and every description of goods, beable to send his products all over the world, subject only to the tarifflaws of the various countries, while the author (alone of all knownproducers) is forbidden to do so? The existing law of our country says tothe foreign author, "You can have property in your book only if youmanufacture it into salable form in this country. " What would be said ofthe wisdom or wild folly of a law which sought to protect other Americanindustries by forbidding the importation of all foreign manufactures?

No question of tariff protection is here involved. What duty shall beimposed upon foreign products or foreign manufactures is a question ofpolitical economy. The wrong against which authors should protest is inannexing to their terms of ownership of their property a protectivetariff revision. For, be it observed, this is a subject of abstractjustice, moral right, and it matters nothing whether the author beAmerican, English, German, French, Hindoo, or Chinese, --and it is verycertain that when America shall enact a simple, just, copyright law, giving to every human being the same protection of law to his property inhis mental products as in the work of his hands, every civilized nationon earth will follow the noble example. 

As it now stands, authors who annually produce the raw material formanufacturing purposes to an amount in value of millions, supporting vastpopulations of people, authors whose mental produce rivals and exceeds incommercial value many of the great staple products of our fields, are theonly producers who have no distinct property in their products, who arenot protected in holding on to the feeble tenure the law gives them, andwhose quasi-property in their works, flimsy as it is, is limited to a fewyears, and cannot with certainty be handed down to their children. Itwill be said, it is said, that it is impossible for the author to obtainan acknowledgment of absolute right of property in his brain work. In ourcivilization we have not yet arrived at this state of justice. It may beso. Indeed some authors have declared that this justice would be againstpublic policy. I trust they are sustained by the lofty thought that inthis view they are rising above the petty realm of literature into thebroad field of statesmanship. 

But I think there will be a general agreement that in the needed revisalof our local copyright law we can attain some measure of justice. Some ofthe most obvious hardships can be removed. There is no reason why anauthor should pay for the privilege of a long life by the loss of hiscopyrights, and that his old age should be embittered by poverty becausehe cannot have the results of the labor of his vigorous years. There isno reason why if he dies young he should leave those dependent on himwithout support, for the public has really no more right to appropriatehis book than it would have to take his house from his widow andchildren. His income at best is small after he has divided with thepublishers. 

No, there can certainly be no valid argument against extending thecopyright of the author to his own lifetime, with the addition of fortyor fifty years for the benefit of his heirs. I will not leave thisportion of the topic without saying that a perfectly harmonious relationbetween authors and publishers is most earnestly to be desired, norwithout the frank acknowledgment that, in literary tradition and in thepresent experience, many of the most noble friendships and the mostgenerous and helpful relations have subsisted, as they ought always tosubsist, between the producers and the distributors of literature, especially when the publisher has a love for literature, and the authoris a reasonable being and takes pains to inform himself about thepublishing business. 

One aspect of the publishing business which has become increasinglyprominent during the last fifteen years cannot be overlooked, for it iscertain to affect seriously the production of literature as to quality, and its distribution. Capital has discovered that literature is a productout of which money can be made, in the same way that it can be made incotton, wheat, or iron. Never before in history has so much money beeninvested in publishing, with the single purpose of creating and supplyingthe market with manufactured goods. Never before has there been such anappeal to the reading public, or such a study of its tastes, or supposedtastes, wants, likes and dislikes, coupled also with the same shrewdanxiety to ascertain a future demand that governs the purveyors of springand fall styles in millinery and dressmaking. Not only the contents ofthe books and periodicals, but the covers, must be made to catch thefleeting fancy. Will the public next season wear its hose dotted orstriped?

Another branch of this activity is the so-called syndicating of theauthor's products in the control of one salesman, in which good work andinferior work are coupled together at a common selling price and incommon notoriety. This insures a wider distribution, but what is itseffect upon the quality of literature? Is it your observation that thewriter for a syndicate, on solicitation for a price or an order for acertain kind of work, produces as good quality as when he worksindependently, uninfluenced by the spirit of commercialism? The questionis a serious one for the future of literature. 

The consolidation of capital in great publishing establishments has itsadvantages and its disadvantages. It increases vastly the yearly outputof books. The presses must be kept running, printers, papermakers, andmachinists are interested in this. The maw of the press must be fed. Thecapital must earn its money. One advantage of this is that when new andusable material is not forthcoming, the "standards" and the bestliterature must be reproduced in countless editions, and the bestliterature is broadcast over the world at prices to suit all purses, eventhe leanest. The disadvantage is that products, in the eagerness ofcompetition for a market, are accepted which are of a character to harmand not help the development of the contemporary mind in moral andintellectual strength. The public expresses its fear of this in thephrase it has invented--"the spawn of the press. " The author who writessimply to supply this press, and in constant view of a market, is certainto deteriorate in his quality, nay more, as a beginner he is satisfied ifhe can produce something that will sell without regard to its quality. Isit extravagant to speak of a tendency to make the author merely anadjunct of the publishing house? Take as an illustration the publicationsin books and magazines relating to the late Spanish-American war. Howmany of them were ordered to meet a supposed market, and how many of themwere the spontaneous and natural productions of writers who had somethingto say? I am not quarreling, you see, with the newspapers who do thissort of thing; I am speaking of the tendency of what we have beenaccustomed to call literature to take on the transient and hastycharacter of the newspaper. 

In another respect, in method if not in quality, this literatureapproaches the newspaper. It is the habit of some publishing houses, notof all, let me distinctly say, to seek always notoriety, not to nurse andkeep before the public mind the best that has been evolved from time totime, but to offer always something new. The year's flooring is threshedoff and the floor swept to make room for a fresh batch. Effort eventuallyceases for the old and approved, and is concentrated on experiments. Thisis like the conduct of a newspaper. It is assumed that the public must bestartled all the time. 

I speak of this freely because I think it as bad policy for the publisheras it is harmful to the public of readers. The same effort used tointroduce a novelty will be much better remunerated by pushing the saleof an acknowledged good piece of literature. 

Literature depends, like every other product bought by the people, uponadvertising, and it needs much effort usually to arrest the attention ofour hurrying public upon what it would most enjoy if it were brought toits knowledge. 

It would not be easy to fix the limit in this vast country to thecirculation of a good book if it were properly kept before the public. Day by day, year by year, new readers are coming forward with curiosityand intellectual wants. The generation that now is should not be deprivedof the best in the last generation. Nay more, one publication, in anyform, reaches only a comparatively small portion of the public that wouldbe interested in it. A novel, for instance, may have a large circulationin a magazine; it may then appear in a book; it may reach other readersserially again in the columns of a newspaper; it may be offered again inall the by-ways by subscription, and yet not nearly exhaust itslegitimate running power. This is not a supposition but a fact proved bytrial. Nor is it to be wondered at, when we consider that we have anunequaled homogeneous population with a similar common-school education. In looking over publishers' lists I am constantly coming across goodbooks out of print, which are practically unknown to this generation, andyet are more profitable, truer to life and character, more entertainingand amusing, than most of those fresh from the press month by month. 

Of the effect upon the literary product of writing to order, in obedienceto a merely commercial instinct, I need not enlarge to a company ofauthors, any more than to a company of artists I need to enlarge upon theeffect of a like commercial instinct upon art. 

I am aware that the evolution of literature or art in any period, inrelation to the literature and art of the world, cannot be accuratelyjudged by contemporaries and participants, nor can it be predicted. But Ihave great expectations of the product of both in this country, and I amsure that both will be affected by the conduct of persons now living. Itis for this reason that I have spoken.