Canadian copyright

Wise, Frank

Canadian copyright

CANADIAN COPYRIGHT

BY

FRANK WISE

Reprinted in Advance from the University Magazine,
October, 1911.

MORANG & CO., LIMITED,
TORONTO.

CANADIAN COPYRIGHT

AN article on '^Twenty Years of International Copy-
^^ right/' by Brander Matthews, in the June number of
the American ^^ Review of Reviews/' is very well worth
reading from a Canadian point of view in that it tells the story
of how the development of American literature was retarded
prior to the passage of the International Copyright Act of 1891.
The Canadian Government now proposes to enact a Copy-
right Bill avowedly to retaUate against the United States
and, by making wholesale piracy possible, to force the Wash-
ington Government to become a sigaatory to the Berne
Convention.

With their usual aversion from being partners to an agree-
ment which would give to the other side at least as good a
bargain as to themselves, the Americans always consistently
refused to enter into a reciprocal arrangement with England
regarding copyright. The result was that unless an Amer-
ican writer had private means or a profession bringing him
an income, he could not afford to devote any of his time to
literature owing to the fact that American re-printing houses
were flooding the reading market with English books on which
little or no royalty was paid.

The 19th century, so prolific of virile writers in England,
no doubt would have produced in America also many a writer
of equal possibilities. These '^ mute inglorious Miltons,''
however, were given no chance under the short-sighted
policy of authorised piracy acquiesced in by the Govern-
ment at Washington

As Mr. Brander Matthews clearly shows, America
suffered in a way which can never be overcome. Having
no literary school of her own she was forced into adopting
that of the English, and the American reader, much as he
detested his English cousin in those days, was compelled to

absorb his mental pabulam, often unwittingly, to be sure,
from the minds of the Mother-land he had cast from him.
It is seen only too plainly now what a terrible price America
paid for allowing the naturally predatory instincts of her
people to prevail.

" Copyright '' is now, and has always been understood
to mean something for the protection of the producer, that
is, the author. Up to the time of Queen Anne there was no
adequate protection for him and consequently the writers
of the day were able to get but a pittance for their work
since no publisher — or bookseller, as he was then called —
could afford to produce a book which could be ^^ appropri-
ated '' by any rival concern that pleased to take it. Much
of the successive copyright legislation in England was towards
the strengthening of the author's rights against the book-
sellers, and there seems to have been much animus against
the latter, who perhaps needed regulating more or less in
their dealings with their authors. To-day, however, owing
to Authors' Associations and Literary Agents, and to com-
petition among publishers, a writer is almost able to
dictate terms to the publisher.

About the time of the passage of the International
Copyright Act in 1891 the Labour Unions in the States
began to acquire their present-day power and it was only
natural, perhaps, that, having the power, the strongest of
them all, the Typographical Union, should insist on forcing
into the new Act the very reprehensible ^^ Manufacturing
Clause " which grants the protection of copyright only to
works composed and printed in the States. This, of course,
necessarily meant the use of American paper and American
cloth for binding, both of which were highly protected by
tariff. Once again England, therefore, woq a Hterary victory,
since anything, large or small, can obtain copyright in England
by the simple act of publishing, and can be defended by reg-
istering at Stationer's Hall. While literature was restricted
in the States to only that which it would pay to set up and
print there, in England — to quote Lord Cairns — ^^ The aim

of the legislature is to increase the common stock of literature
of the country/' which at that time allowed an alien writer
the same protection in England as that accorded to a British
subject. In the United States only an American citizen
was entitled to such protection.

The new Buxton Copyright Bill will put a somewhat
new face on copyright affairs in Great Britain, in that it
proposes to grait protection only to those works of which
the author is a British subject or a bona fide resident in some
part of the British Empire. For the first tim.e the English
copyright law will be brought under statutory form, and
it is no doubt an echo of the new Patent Act which requires
that a patent to be protected in Great Britain must be manu-
factured there.

In Canada the new Copyright Act proposes to include
a " manufacturing clause '' in so far as printing is concerned,
which the minister publicly avows is retaliatory upon the
United States. If the States are to be punished — and who
shall say they do not deserve it — probably the most appro-
priate weapon will be a rod of their own pickling. And
whereas in time past America had on the surface everything
to gain by pirating from England, now she has everything
to lose by having her literary product pirated by Canada.
For hardly an American periodical publication comes into
Canada that has not one or more articles of more or less
interest to Canadians; and can we be sure that all Canadian
printers will be proof against the great temptation to ^^ appro-
priate '' an interesting article which costs them nothing
but which cost the American publisher or editor some tens,
hundreds, or perhaps thousands of dollars?

The world has learned a few lessons in honesty, or at least
in " honesty being the best policy,^' in the last few years. It
has learned that disposing of forest lands to political heelers, for
instance, has resulted in denuding the country of pulp-wood,
and Canada has seen the result in the United States and has
established her conservation policy which provides for
sowing as well as reaping. It should not therefore be a

matter of mere conjecture as to whether Canada shall stunt
the growth of her own native literature by copying the
fatal mistake made by the Americans when they yielded to
the temptation to steal, and strangled their own literature
to such an extent that, in what seems to have been the most
prolific period of writing among English-speaking peoples,
or rather during the period of literary awakening as exem-
plified by the Victorian writers, only a few American authors
forced their way to the front. It is probable that had not
they been possessed of so strong an individual American
note, even they could never have risen through the stagnant
water which the American people and their Government
refused to see needed aerating to bring life to it. Had it
not been for the fact that Lowell, Holmes, Longfellow, Cooper
and Irving, for instance, had other meaas of subsistence
their writings could never have seen light, and that they
then did was largely due to the fact that England recognised
in them a new school quite unlike its own and reprinted
their work, certain English printers taking a leaf out of the
Americans' book and pirating as they pleased.

This, while bringing these American writers to the atten-
tion of readers in England, did not mean that it brought any
dollars into the pockets of the writers. On the contrary,
we find that they received little or nothing from the English
editions while thousands of copies were sold. Indeed it is
said that of ^^ Uncle Tom's Cabin '' half a million copies
were sold in England in the first few months of its appearance
but that not a penny of royalty reached Mrs. Stowe.

A responsible publisher cannot afford to identify him-
self with any act of piracy and therefore he shares with the
author the baneful effects of a national state of affairs which
allows an unprincipled printer to produce in unlimited quan-
tities books not only that are pirated, but which are so
ruthlessly abridged and garbled, chiefly for economy's sake,
that the reader can never tell whether he is reading what the
author wrote or not, the book itself, moreover, as a rule,

being badly printed on poor paper and issued in a worse
binding. Mr. Gladstone once said:

"Noble works ought not to be printed in mean and worthless
forms, and cheapness ought to be limited by an instinctive sense of law
and fitness. The binding of a book is the dress with which it walks
out into the world. The paper, type and ink are the body in which
the soul is domiciled; and these three — soul, body, and habiliment —
are a trio which ought to be adjusted to one another by the laws of
harmony and good sense."

A good instance is Mr. Bryce^s notable work, '^ The
American Commonwealth.^' It was not possible to copy-
right the first edition when it appeared and so when the sale
seemed promising enough to bring out a pirated edition one
promptly appeared. When the present authorised second
edition was published containing much new material which
could be protected by copyright, the printers of the pirated
edition brought out a ^' new edition ^' also, impudently
insertiag '^ new chapters '' but without any intimation that
they were not from Mr. Bryce's pen. The average par-
chaser of this garbled work, therefore, has no means of telling
that what he is reading is not " Bryce '' at all except in a
few chapters.

After all, the reading public can only perform a certain
stint of reading, the limit being set by time and inclination.
If, therefore, for economical reasons he limits his purchases
to the cheapest, the reader will not only degrade his taste
but put such a restraint on both author and publisher in his
own country that we shall stand in as great danger of re-
pressing our potential Canadian literature as the Americans
did of strangling their own prior to 1891. As a matter of fact
our danger as Canadians is infinitely greater since, from our
close proximity to our neighbours and the smallness of our
population as compared with that of the States, we are
much more likely to be Americanised than the Americans
were to be Anglicised by British writers 3000 miles away.
That the community of readers' interests is much closer
between Canada and the United States than between us and

6

England is attested by the fact that some millions of copies
of American magazines come into Canada yearly as against
a few hundred thousand copies from England. Our habits,
customs, modes of living; our climate, our youth as a nation
even, so closely approximate parallel conditions to the south
of us that, putting aside the question of political absorption,
our literature is in greater danger than was ever that of
America. Much as we may wish to put aside the concrete
idea of political absorption as the result of inter-trading,
we must not lose sight of the power the press wields in its
daily, weekly and monthly offering to Canadian readers of
North American ideas wholly from the point of view of the
United States. There is much to fear in having all this
matter, simply because it can be *^ appropriated '^ at no cost,
dished up by Canadian periodical publishers as original
'^ Canadian '^ thought to unsuspecting readers. Thus un-
thinkingly shall we assist in our own undoing.

It is much to be regretted, of course, that the present
size of our population will not make profitable for consump-
tion wholly in Canada the cost of type-settiag and printing
here a book written by a Canadian, and so, unfortunately,
many a good MS is now returned to its writer because the
Canadian sales will not warrant a publisher undertaking
its sole cost of production, an American publisher not finding
it of sufficient interest to his public to warrant his under-
taking any part of its initial cost by publishing it in the
States. This proves the Canadian publishers' contention
that the mere inclusion of a Manufacturing Clause will iiot
of itself increase the amount of printing to be done in Canada.
With our population growing by such leaps and bounds as
at present, the time will come when we in Canada can absorb
what we produce, and for that reason we should be content
to bide our time and, meanwhile, preserve our Canadian
national literature, even if at present it is only potential.

It is not so much the piracy of books which Canadian
publishers and authors have to fear since the publisher knows
as a rule whether a forthcoming novel, for instance, will

be in danger of being pirated and can always take the pre-
caution of procuring a set of plates in advance and printing
Iq Canada to publish simultaneously with the American
edition. One thing he has to fear is the danger of part of
a book being taken and published in cheap form for some
specific purpose . For instance, Prof. Adami has written a
^^ Text-book of Pathology^' to the order of an American
publishing house. Undoubtedly many chapters of special
significance to students, and perhaps to practitioners, could
be abstracted and put up in cheap form by a pirate without
paying a cent of royalty. Again, many text-books have
been handled by authorised agencies in Canada who by their
labour and ability have been able to get for them an increasing
sale in Canada. Before the time arrives when it would be
profitable to obtain a copyright in Canada by printing there
and, in addition, to pay a royalty to the author, a pirate
can produce an edition at a profit since he has no royalty
obligation to consider. This danger is increased by the
clause in the proposed Bill which allows only fourteen days
in which to copyright. Under the present existing Act one is
allowed to print, and so obtain copyright, at will. It is to
be hoped that the '^ at will ^^ clause will be retained in the
new Act since an authorised agent generally knows sooner
than the pirate when a locally printed book would be profitable.
Another danger is the menace to existing Canadian peri-
odicals now paying for contributions by Canadians. If one
or more magazines are to appear filled merely with matter
^^ lifted '' from the best American magazines and be pubUshed
at a price so cheap that legitimate publications cannot
compete at a profit, both legitimate publishers and authors
suffer.

Undoubtedly Canadian printers and paper makers bring
great pressure to bear on the Government towards confining
protection to locally produced books, but they evidently
do not appreciate the fact that a publisher, if for reasons
of coQvenience alone, would much rather own his plates
and have them handy when needed for a new edition, and

8

bind only such quantities as are needed from time to time.
Printers ajid paper-makers, moreover, have a very erroneous
idea as to the sales of various imported books. Some months
ago a member for Toronto introduced a bill into the House
to amend the Copyright Act so as to include a manufac-
turing clause. When the members were shown how it would
never be profitable to print the comparatively small number
of a book now being imported the bill was withdrawn.

The proposed Bill contains a clause designed to regulate
the price of a popular book. While this is perhaps advisable
as a protection to the public in return for the protection of
the author there is not much danger of the Government's
ever having to interfere in the interest of the public as the
publisher himself puts out a cheaper edition of a work just
as soon as he feels the stratum for the higher priced editions
has been drained. A cheaper edition is only possible in
that there was originally a higher-priced one.

If piracy is to obtain here the business of publishing
is bound to languish in just the same way as it did in the
States prior to 1891. In those days the works of Dickens,
Thackeray and other writers were first published in England
in monthly numbers or parts. On arriving in America these
became the property of anyone and so the reputable publisher,
among whom were found the Harpers, and Appletons, ar-
ranged with the English publishers to pay a fair royalty
for the privilege of obtaining in advance copy for the last few
numbers. This enabled the royalty-paying publisher to
get at least the cream of the sale by printing and dis-
tributing for sale a complete book before the last part of the
English edition could be imported and become public property.
Even then it was possible for a number of pirated editions
soon to appear, often in incomplete and garbled form, and
be sold at a price which would undersell that of the royalty-
paying publishers. Reputable publishers bound themselves
not to interfere with each other's purchased rights but it
would have been a feat as impossible as that of Mrs. Part-
ington's to attempt to '^ corner " all the re-printing establish-

9

merits in New York alone. Indeed, so numerous did re-printing
houses become that when Mr. Lovell formed the United
States Book Co to embrace all those of importance, no less
than thirteen sets of plates of ^' Robert Elsmere ^' were
turned in as part assets of as many houses, copies of this
book having latterly been sold at wholesale by competing
houses as low as eight cents a copy, or much less than the
cost of production. The temptation to commit piracy must
have been great when the authorised publisher found it
necessary to print a first edition of 100,000 copies of that
particular title. The same publisher, Lovell, whose literary
adviser was Mr. Kipling^s brother-in-law, Wolcott Balestier,
acquired the rights to the first publishing of Kipling's early
writings, printing first editions of from twenty to twenty-
five thousand copies. Many editions of these early Kipling
books from pirate plates are still printed in the States and
occasionally an attempt is made to slip them through into
Canada, although they are now almost sure to be held up
at the Customs and confiscated.

An old employee of LovelFs gives a most interesting
account of how the messengers of the different pirating houses
used to meet the steamers arriving at New York and obtain
copies of some new English book which had been purchased
for them by their London agents. The messengers raced
to their respective offices and the books were at once torn
apart and put into the hands of as many compositors as
possible. The type was then hurried to the waiting presses,
after a most perfunctory proofreading, and the edition
rushed off — the first one to appear getting the cream of the
sale.

Where arrangements were made in advance with royalty-
paying houses for American editions of Rider Haggard,
Correlli, Kipling, etc., the greatest care had to be exercised
to prevent copies being stolen by dishonest employees and
sold to a rival concern. If a single copy were missing or
unaccounted for the whole staff was locked in to be searched
until the missing copy was produced.

10

At that time fiction was carried by the Post Office at
one cent per pound; a mail sack holding 125 books. The
first edition, therefore, was distributed by post and so mailed
that the copies intended for San Francisco sent, for instance,
on Monday, for Utah on Tuesday, for Denver on Wednesday,
for Chicago on Thursday, etc., etc., were all offered for sale
on Friday which was publishing day in New York.

All this, of course, came to an end on the passage of the
Act of July, 1891, when the American Government permitted
the copyrighting of the works of aliens when produced in the
States and if published simultaneously with the English
editions, England granting the same privileges but requiring
registration only.

This privilege of registration has been grossly abused
and American periodicals have heea enabled to penalise
Canadian newspapers for reprinting extracts of articles
from American magazines which have been merely registered
at Stationers' Hall. This, of course, will no longer be possible
after the passage of the proposed Buxton Copyright Act in
Great Britain when protection will only be granted to bona
fide residents in the Empire or to Britons living abroad.

While the foregoing is amusing to read as having hap-
pened elsewhere it can only be considered as a serious lesson to
Canada and Canadians and it behooves all publishers and
authors in the Dominion to give the matter their most care-
ful thought and consideration and to bring their side of the
question in all its seriousness to the attention of their local
members of Parhament before the Bill comes to its final
reading. It seems inconceivable that the Government which
at the present moment is seeking friendly relations with
the United States and reciprocity in natural products should,
at the same time, be creating a condition which will bring
down upon it the wrath of the whole American press, adver-
tising to the world the fact that Canada is deliberately taking
a retrograde step in civilization.

Frank Wise

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