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THE

QUESTION OF COPYRIGHT

COMPRISING THE TEXT OF THE COPYRIGHT LAW OF
THE UNITED STATES, A SUMMARY OF THE COPY-
RIGHT LAWS AT PRESENT IN FORCE IN
THE CHIEF COUNTRIES OF THE WORLD

TOGETHER WITH

A REPORT OF THE LEGISLATION NOW TENDING IN GREAT BRITAIN,

A SKETCH OF THE CONTEST IN THE UNITED STATES, 1837-189I,

IN BEHALF OF INTERNATIONAL COPYRIGHT, AND CERTAIN

PAPERS ON THE DEVELOPMENT OF THE CONCEPTION

OF LITERARY PROPERTY, AND ON THE RESULTS

OF THE AMERICAN ACT OF 1 89 1

COMPILED BY

GEO. HAVEN PUTNAM, A.M.

SECOND EDITION, REVISED, AND WITH ADDITIONAL MATERIAL

G. P. PUTNAM'S SONS

NEW YORK LONDON

27 WEST TWENTY-THIRD STREET 24 BEDFORD STREET, STRAND

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1896

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G. P. PUTNAM'S SONS
Copyright, 1896

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Entered at Stationers' Hall, London

"Ebe •fcnicfterbocfeer press, 1Rew tRocbelle, 1ft. JtJ.

PREFACE TO SECOND EDITION.

The original edition of this volume was prepared
for the press very hurriedly, immediately after the
passage of the Act of 1891, for the purpose of putting
into shape, for convenient reference, the text of the
new law, with an analysis of its provisions, and of
presenting with this a brief record of the inter-
national copyright movement in this country, and
a sketch of the development throughout the world
of the conception of literary property. Five years
have passed since the United States, through this
law of 1 89 1, adopted the policy which had for a
number of years been accepted by nearly all the
other literature-producing states of the world, a
policy which assumed that the producers of intellec-
tual property were entitled to the protection given
by law to all other producers, and to the enjoy-
ment of the fruits of their labors, irrespective of
political boundaries. The American recognition of
this principle was coupled with certain conditions
which, while they had no logical connection with
authors' rights, were believed, by the political party
that in 1891 controlled the national policy, to be
called for by the exceptional industrial conditions of
our country.

IV PREFACE TO THE SECOND EDITION.

It was, on the other hand, the opinion of those
who, in 1 89 1, were carrying on the contest (begun
nearly half a century before) in behalf of the rights
of authors, American as well as foreign, and of
what they held to be the honor of the nation, that
these hampering conditions and restrictions would
doubtless be removed in a few years' time. There
is as yet, it must be admitted, no progress to be
recorded in this direction, and it is evident that the
date when the United States is to come into full lit-
erary fellowship with other civilized states by accept-
ing the unrestricted copyright of the Convention of
Berne, is to be postponed beyond the original expec-
tation. Such an advance to a logical and civilized
policy in regard to literary property must, however,
certainly be secured in the not very remote future,
and in any case the most difficult step forward was
taken when we expressed our willingness to acknow-
ledge, even with illogical conditions, the property
rights of aliens, and in so doing, were able to secure
recognition on the other side of the Atlantic (and on
much more favorable terms) for the similar rights of
Americans.

I have presented in a later chapter my impressions
concerning the general results of the legislation of
1 891, and in regard to its effects upon the interests
of both the readers and the producers of books. It
is in order to admit that the Act has on the whole
worked with less friction and with less considerable
difficulty than had been anticipated by those who
were responsible for its provisions as first drafted,
and who were in a position to realize how seriously

PREFACE TO THE SECOND EDITION. V

the purpose and the consistency of character of the
measure had been imperilled by certain hastily con-
sidered " amendments " crowded into the bill, during
the last days of the contest, by both the friends and
opponents of copyright.

A summary of the copyright cases which have
been brought before the courts since July, 1891, and
the issues of which have turned upon the inter-
national provisions of the law that went into effect,
is given in one of the following chapters. The list is
not a considerable one, and the Act has thus far not
only withstood the various attacks made upon its
general purpose, but has received, in the details thus
far tested, the substantial support of the courts.
Certain suits which are at this date (January, 1896)
still pending, will probably be more important than
those already decided, in determining the purport of
its several provisions.

I have given the record of the Covert amendment,
which was adopted in 1895, and which is the only
change that has been made in the law since March,
1891. This amendment secured a correction that
was very justly called for by the newspaper publish-
ers, who, under the original Act, had been exposed to
oppressive penalties (amounting sometimes to black-
mail) in connection with the reproduction of photo-
graphs and of popular art designs. I have also noted
the attempt made under the Hicks bill, of the same
year, which was very properly defeated, to undermine
the protection given by the Act to European artists.

The most serious and most legitimate criticisms of
the law have come from the authors of France, Ger-

VI PREFACE TO THE SECOND EDITION.

many, and Italy, who have found that, under the
requirements of American manufacture and of simul-
taneous publication, the difficulties were almost in-
superable in the way of securing American copyright
for books which required to be translated before
they were available for American readers. In Ger-
many, the disappointment and annoyance at what
are held to be the inequitable restrictions of the
American statute have been so considerable that
steps have been taken, on the part of the authors
and publishers, to secure the abrogation of the con-
vention entered into in 1893 between Germany and
the United States. The defenders of the convention
have thus far succeeded in preventing it from being
set aside, but they do not feel at all assured that they
will be able to maintain it for an indefinite period
unless some indications may come from this side of
the Atlantic that we look forward to removing the
special difficulties complained of. The disappoint-
ment and the criticism on the part of the authors of
France are hardly less bitter, and I understand that
it is only the fact that certain substantial advantages
are secured under the law to foreign artists and de-
signers, and the expectation that our people can not
long remain satisfied, while granting literary copy-
right in form to refuse it in fact, that prevent organ-
ized attacks, not only in Paris, but in Rome, upon
the present international arrangement. These com-
plaints impress me as well founded, and they give
ground for a feeling of mortification on the part of
Americans who have at heart the reputation of their
country for good faith and for fair dealing.

PREFACE TO THE SECOND EDITION. Vll

The several points to be kept in view in connec-
tion with future modifications of our copyright Act
are in my judgment as follows :

First. The extension of the term of copyright,
with a view to securing for the producers of intellec-
tual property the control of their productions during
their own lifetime and of preserving for their heirs
the enjoyment of the results from these productions
during a reasonable term after the death of the pro-
ducer. Under the present conditions, it is quite
possible for an author to be exposed, during his own
lifetime, to the competition of unauthorized editions
of his earlier works. In connection with such unau-
thorized editions, he has not only the annoyance of
the interference with the sales of the editions issued
by his own publishers, but (what may often constitute
a more serious grievance) the mortification of seeing
reproduced crude youthful productions which he had
intended to cancel, or unrevised and incomplete ver-
sions of compositions to which in later years he had
given a final literary form.

Such an extension of term is required to secure
for an author the privilege that is under our laws
conceded to all other workers or producers, of being
able to labor for the advantage of his children and
grandchildren. The justice of such larger measure
of protection for literary property and of encourage-
ment for literary workers has been fully recognized
by every country in Europe excepting Great Britain,
and the British law is much more liberal to the rights
of authors than is our own. The British Act will
itself also doubtless in the near future be modified

viii PREFACE TO THE SECOND EDITION.

in accordance with the bill now pending, so that the
term of copyright will be extended to correspond
with that of Germany, which covers the life of the
author and thirty years thereafter.

Second. Steps should be taken as promptly as
practicable to remove the special grievance now ex-
isting on the part of European authors whose works
require to be translated. France, Germany, Italy,
and Spain have extended to American authors the
privileges possessed by their native writers, while the
United States has given to the authors of these
countries no privileges which are really equivalent.
It may not be practicable for a number of years, in
connection with the continued approval given by the
majority of our citizens to the so-called protective
system, to remove from our copyright Act the con-
dition of manufacturing within the United States.
It will also probably be necessary to retain in the
Act, in connection with the manufacturing pro-
vision, the condition of simultaneous publication.
The Act should, however, provide that an exception
to this requirement for simultaneous publication
should be made in the case of a work originally
issued in a foreign language. Such a work could be
registered for copyright in regular course, with a title-
page in English, and with two copies of the original
text submitted for purposes of identification as pre-
liminary deposits ; with the provision that, within a
specific term (say twelve months) after the date of
such registration, publication be made of an English
version, an edition of which should be printed, accord-
ing to the manufacturing condition, from " type set

PREFACE TO THE SECOND EDITION. IX

within the United States." If, within that date, no
edition should be produced, the producers of which
had complied with the conditions of the American
Act, the right to reproduce the work in English
might then fall into the public domain. A pro-
vision to such effect, while by no means sufficient to
do full justice to European authors, would secure to
such of those authors as really had an American
reading public awaiting their books, the substantial
advantages of American copyright. I do not see
any other way in which foreign authors can obtain
the benefits intended by the Act as long as the
manufacturing condition and the provision for simul-
taneous publication are retained. Such a provision
would be in line with the arrangements now in force
between the European states (under the Berne con-
vention) covering the similar requirements for trans-
lated works.

Third. A substantial improvement is called for,
in connection with the system for the entry of copy-
rights and the registration of titles, and for the
preservation for use later in the courts if required,
of authoritative evidence that the requirements of
the law have been complied with.

The Acts of 1870 and 1891 make adequate provi-
sion for the registration of articles entered for copy-
right, the most important of which articles, in
connection with the possible necessity of future
reference to the registry, being undoubtedly books.
It has, however, been found impracticable, with the
facilities existing in the office of the Librarian of
Congress, as that office is now organized, to give

X PREFACE TO THE SECOND EDITION.

adequate and prompt attention to the business con-
nected with copyrights. The library business of the
Librarian has during the last ten years increased
enormously, and the work of supervising effectively
the entry of copyrights calls for the establishment
of a registry of copyrights which shall not be a
division of the Library of Congress, but shall con-
stitute an independent Bureau. The producers of
books, works of art, music, designs and other articles
entitled to copyright, contribute each year in the
form of copyright fees a very considerable sum, esti-
mated at from $35,000 to $40,000. In addition to
this money payment, they are called upon to deposit
copies of the articles copyrighted. In the case of
books, two copies of which must be deposited for
the National Library, the value of the volumes (aggre-
gating for 1895 over 10,000) thus delivered by the
publishers, constitutes in itself a large annual tax.
This tax is paid for the support of an effective
system of copyright entry and for the maintenance
of a registry for titles which shall always be available
for ready reference.

At the present time the producers and owners of
literary property are not securing for this payment
adequate consideration. It is therefore a ground for
satisfaction that the steps have now been taken to
institute such a Bureau of copyrights as is required.
In December, 1895, a bill was introduced in the
House by Mr. Bankhead, and a second bill with
nearly identical provisions was introduced in the
Senate by Senator Morrill, under the provisions of
which the office of Register of Copyrights is insti-

PREFACE TO THE SECOND EDITION. xi

tuted. With this register are to be appointed an
assistant register and a clerk. An appropriation of
$7500 is to be made to cover the salaries of the
three. The register is to be appointed by the
President, subject to the approval of the Senate, and
the assistant register, under one bill, by the Secre-
tary of the Treasury, and under the other, by the
President. The general purpose of these two bills
is to be commended. It is my opinion, however,
that a larger appropriation should be made for the
salaries and also that the register should have
placed in his own hands the appointment of the
assistant and the clerk.

Fourth. A further consideration will be required
for the provisions of the Act having to do with
property in the right of productions. The case of
Werckmeister vs. Pierce and Bushnell, referred to in
another chapter, and one or two other similar issues
that have arisen, indicate that the wording of the
sections providing regulations for the entry of the
copyright of works of art is not sufficiently explicit,
and that Transatlantic artists may occasionally fail
to secure for their productions the protection which
it was the purpose of the Act to provide.

I venture to repeat a suggestion which I have
more than once had occasion to put into print, that
the framing of a satisfactory copyright Act which
shall have for its purpose an equitable and adequate
protection for the producers of intellectual property,
and which shall be so worded as to carry out that
purpose effectively, should be entrusted to a com-
mission of experts. Such a commission should

xii PREFACE TO THE SECOND EDITION.

comprise representatives of the several interests to
be considered, producers of works of literature, pro-
ducers of works of art, publishers of books, and pub-
lishers of art works. The commission should also
include at least one skilled copyright lawyer, and it
may be in order to add some representative of the
general public who would have no direct property
interest in the results of such a bill as may be framed.
All existing copyright systems of the world except-
ing that of the United States have been the work of
such commissions of experts. The members of these
commissions have had authority to summon wit-
nesses and to take testimony, and after having de-
voted sufficient time to the mastery of the details of
a subject which is of necessity complex and which
certainly calls for expert training and expert experi-
ence, they have presented their conclusions in the
form of a report containing the specifications of the
legislation recommended. The copyright laws of
the States of Europe have, without an exception,
been based upon such recommendations. The Gov-
ernment of the United States stands alone in having
relied for its copyright legislation solely upon the
conclusions that could be arrived at by Congres-
sional committees. However intelligent the mem-
bers of such committees might be, and however
conscientious the interest given by these Congress-
men, or by some among them, to the subject, experi-
ence has shown that it is not practicable to secure
wise and trustworthy copyright legislation in this
manner. Whenever we may be able to overcome
that prejudice which declines to take advantage of

PREFACE TO THE SECOND EDITION. Xlll

the experience and the example of the States of
Europe in connection with the solution of problems
and questions similar to our own, we shall doubtless
decide to try the experiment of instituting a com-
mission of experts for the reforming of our copyright
law.

G. H. P.

New York, Febrtiary, 1896.

PREFACE TO THE FIRST EDITION.

In connection with the recent enactment by Con-
gress of a Copyright Law securing American Copy-
right for aliens, the subject of the status of literary
property and of the rights of the producers of liter-
ature in the United States and throughout the
world is attracting at this time special attention.
I have judged, therefore, that a volume presenting,
in convenient form for reference, a summary of the
more important of the Copyright Laws and Interna-
tional Conventions now in force, and indicating the
bearing of these laws on the interests of writers and
their readers, might prove of some service to the
public. With the summary of existing legislation,
I have included a brief abstract of certain measures
now under consideration in England, some one of
which is likely, before long, to replace the present
British law.

The compilation lays no claim to completeness,
but is planned simply as a selection of the more im-
portant and pertinent of the recent enactments and
of some of the comments upon them.

I am indebted to the courtesy of Mr. Brander
Matthews for the permission to include in the vol-
ume his valuable papers on "The Evolution of
Copyright," and " Copyright and Prices "—papers
which were prepared for use in the copyright cam-

XVI PREFACE TO THE FIRST EDITION.

paign and which proved of very practical service.
Mr. Bowker, who is an oid-time worker in the copy-
right cause, has also kindly permitted the use of
three pertinent articles from his pen, which were
first printed in the valuable work on The Law and
Literature of Copyright, prepared by himself and
Mr. Solberg, a volume which contains the most com-
prehensive bibliography of the subject with which I
am acquainted.

I have thought it worth while, also, to reprint sev-
eral papers of my own, which appeared to have some
bearing on the history or on the status of copyright,
and which also were, for the most part, written for
" campaign " purposes.

The report submitted by Mr. Simonds on behalf
of the House Committee on Patents presents a very
comprehensive and succinct summary of the grounds
on which the demand for an International Copy-
right Bill was based, and it is probably the most
complete and forcible of the many reports presented
to Congress on the subject. This report appeared,
therefore, to belong very properly in the collection.

In bringing together statements and records from
a number of sources, it was impracticable to avoid
a few repetitions ; but in a volume which lays no
claim to literary form, but has been planned simply
as a compilation of facts and information, a certain
amount of repetition will, I trust, not be considered
a very grave defect.

An examination of the copyright legislation of
Europe makes clear that the United States, not-
withstanding the important step in advance it has,

PREFACE TO THE FIRST EDITION. XV11

after such long delays, just taken, is still, in its
recognition of the claims of literary workers, very
much behind the other nations of the civilized
world.

The conditional measure for securing American
copyright for aliens (and, under reciprocity, foreign
copyright for Americans), a measure which is the
result of fifty-three years of effort on the part of
individual workers and of successive Copyright
Committees and Leagues, brings this country to
the point reached by France in 1810, and by Great
Britain and the states of Germany in 1 836-1 837.

Under the International Copyright arrangements
which went into effect in Europe in the earlier years
of the century, copyright was conceded to works by
foreign authors only when such works had been
manufactured within the territory of the country
granting the copyright. As late as 1 83 1 , for instance,
Lord St. Leonards stated, in the case of Jeffreys vs.
Boosey, that it had never been the intention of the
English law to extend a copyright protection over
works not manufactured within British territory.

The new American act, which makes American
manufacture a first condition of American copy-
right for aliens, brings us, therefore, to what has
usually, in other countries, been the first stage in the
development of International Copyright — a stage
which was reached in Europe more than half a cent-
ury ago.

What is probably the final stage was attained in
Europe in 1887, when the provisions of the Berne
Convention went into effect. Under this conven-

xviii PREFACE TO THE FIRST EDITION.

tion, by fulfilling the requirements of their domestic
copyright laws, authors can now at once secure,
without further conditions or formalities, copyright
for their productions in all the states belonging to
the International Union.

The states which, in accepting this convention
(the report of which will be found printed in this
volume), organized themselves into the International
Copyright Union, comprised, in addition to nearly
all the countries of Europe, Tunis and Liberia as
representatives of Africa, together with a single
representative of the literary civilization of the
western hemisphere, the little republic of Hayti.

It is not probable that another half century of
effort will be required to bring public opinion in the
American republic up to the standard of interna-
tional justice already attained by Tunis, Liberia, and
Hayti.

Under this standard, it is recognized that literary
producers are entitled to the full control of their
productions, irrespective of political boundaries and
without the limitations of irrelevant conditions.

The annual production of American literature
should certainly be not a little furthered, both as
to its quantity and its importance, by the stimulus
of the new Copyright Act. During the past few
years American writers have been securing growing
circles of readers in England and on the Continent,
and a material increase can now be looked for in the
European demand for American books — a demand
which, in the absence of restrictions, will be met by
the export of plates as well as of editions. The

PREFACE TO THE FIRST EDITION. XIX

improvement and the cheapening of American
methods of typesetting and electrotyping, and, in
fact, of all the processes of book manufacture, will,
I anticipate, at no distant date, remove from the
minds of the men engaged in this manufacture the
fear that they are not in a position to compete to
advantage with the book-making trades of Europe,
and that an International Copyright, without manu-
facturing conditions, might bring about a transfer
to England and to Germany of a large part of the
business of American book-making. It was this
apprehension on the part of the American printers,
and the trades associated with them, that caused the
restrictions in the present act to be inserted. It is
my belief, however, that the trades in question will
before long recognize that there is no adequate
ground for such an apprehension, and that, admit-
ting the importance of preventing any obstacles
from being placed in the way of the exporting of
American books and American plates, they will
themselves take action to secure the elimination of
these restrictions.

When this has been brought about, there should
be nothing further to prevent the United States
from entering the International Copyright Union,
and thus completing, so far as the literature-produc-
ing and literature-consuming nations of the world
are concerned, the abolition of political boundaries
for literary property.

While the recognition by our country of the
claims of foreign authors has been so tardy, its leg-
islation for domestic copyright has also been based

XX PREFACE TO THE FIRST EDITION.

upon a narrower conception of the property rights
of authors than that accepted by the legislators of
Europe. The law of 1870 (given in full in this vol-
ume), which is in this respect unchanged by the Act
of 1 891, gives to a literary production a first term of
copyright of twenty-eight years, and an extension
of such term for fourteen years further only if at the
expiration of the first term the author or the author's
widow or children be living. If the author, dying
before the expiration of the first term, leave neither
widow nor children, the copyright of his work is lim-
ited to twenty-eight years. It was for this reason
that Washington Irving was unable to insure for his
nieces (his adopted children) the provision which
they needed, and which a continued copyright in
their uncle's works would have secured for them.

In England, the present law gives a copyright
term of forty-two years, or for the life of the author
and for seven years thereafter, whichever term may
be the longer ; and the amended law now proposed
extends the term for thirty years after the death of
the author.

This latter is the term provided in the law of the
German Empire, while in Russia and in France the
copyright endures for the life of the author and for
fifty years thereafter.

The steady tendency of legislation has been
towards an increase of the term of copyright and
a recognition of the right of a literary producer to
work for his grandchildren as well as for his children ;
and the desirability of bringing the American term
into accord with that in force in Germany and pro-

PREFACE TO THE FIRST EDITION. XXI

posed in England, namely, the life of the author and
thirty years thereafter, is now a fair subject for con-
sideration.

Since the framing of the American Act of 1870,
not a few questions have arisen in connection with
new processes of reproduction of works of art, etc.,
which are not adequately provided for in that act ;
and the criticism is often heard from American
artists that the copyright protection for their designs
is inadequate.

The American act of the present year, providing
copyright for aliens, can hardly be accepted as final
legislation, and some of its provisions will, doubtless,
at no distant date, after they have had the practical
test of experience, call for further consideration.

It seems to me that in order to secure consistent,
enduring, and satisfactory legislation, that will fairly
meet all the requirements and will not bring about
needless business perplexities necessitating for their
solution frequent appeals to the courts, it will be
wise to follow the precedent of Germany, France,
and England, and to arrange for the appointment of
a commission of experts to make a thorough inves-
tigation of the whole subject of copyright, literary,
musical, and artistic, domestic and international.
The report of such a commission should form a
much more satisfactory basis for trustworthy legis-
lation than could be secured in any other way. A
subject like copyright is evidently not one which
can safely be intrusted to the average congressional
committees, especially if the bills framed in such
committees are to have injected into them after-

xxii PREFACE TO THE FIRST EDITION.

wards the "amendments" of eleventh-hour experts
of the Senate or the House, men who, having looked
into the matter over night, feel assured that they
know all about it.

The action of the Senate in February, 1891, on the
Platt-Simonds Bill, is a fair example of the kind of
amateur and haphazard legislation referred to.

Under the lead of the principal republican and
democratic opponents of the Copyright Bill, an
amendment was offered and was actually passed
by the Senate, which had the effect of abolishing
domestic copyright ; and it was not until several days
later, when this unlooked-for result of senatorial
wisdom had been pointed out by outside critics,
that the amendment was rescinded.1

If this volume may serve to direct public atten-
tion to the advisability of the appointment of a
copyright commission through whose labors the
risks of such haphazard copyright legislation may at
least be minimized, an important purpose of its pub-
lication will have been accomplished.

G. H. P.

New York, March 28, 1891.

1 The Sherman amendment, as originally framed, authorized the
importation, irrespective of the permission of the author, of foreign
editions of works, whether by foreign or American authors, which had
secured American copyright.

The amendment was passed February 14, 1891, by a vote of 25 to
24, and was rescinded February 17, by a vote of 31 to 29. Its mover
was Senator Sherman of Ohio, and he was actively supported by
Senators Daniels of Virginia, Hale of Maine, Gorman of Maryland,
and other experienced legislators.

CONTENTS.

PAGE

Preface to Second Edition iii

Preface to First Edition xv

I. The Law of Copyright in the United States... i
Text of Statutes in Force July i, 1895.
Directions for Securing Copyrights.
Foreign States with which the United States is in

Copyright Relations.
Amendments to the Copyright Act Proposed since
July 1, 1 891.
II. Summary of Copyright Legislation in the United

States, by R. R. Bowker 28

III. Henry Clay's Report in Favor of International

IV. History of the Contest for International Copy-
right 40

V. The Hawley Copyright Bill of January, 1885 64

VI. The Pearsall-Smith Scheme of Copyright 65

VII. Report of the House Committee on Patents, on
the International Copyright Bill of 1890-91,

by W. E. Simonds 77

VIII. The Platt-Simonds Copyright Act of March, 1891. 131
IX. Analysis of the Provisions of the Copyright Act

of 1891 138

X. Extracts from the Speeches in the Copyright
Debates in Congress, 1891, together with the

Vote in the House and in the Senate 148

XI. Results of the Copyright Law of 1891, Con-
sidered in January, 1894 162

xxiii

XXIV

CONTENTS.

PAGE

XII. A Summary of International Copyright Cases

and Decisions since the Act of 1891 175

XIII. Abstract of the Copyright Law of Great

Britain, with a Digest of These Laws,
Prepared by Sir James Stephen 188

XIV. Report of the British Copyright Commission

OF 1878 214

XV. The Monkswell Copyright Bill of 1890, with

AN ANALYSIS OF ITS PROVISIONS, BY SlR FRED-
ERICK Pollock 275

XVI. The Berne Convention of 1887 287

XVII. The Montevideo Convention of 1889 314

XVIII. States avhich have Become Parties to the

Convention of Berne (January, 1896) 316

XIX. The Nature and Origin of Copyright, by R. R.

Bowker 3*7

XX. The Evolution of Copyright, by Brander

Matthews 324

XXI. Literary Property ; an Historical Sketch 351

XXII. Statutory Copyright in England, by R. R.

Bowker 4*2

XXIII. Cheap Books and Good Books, by Brander

Matthews 418

XXIV. Copyright and the Prices of Books 441

XXV. " Copyright," " Monopolies," and " Protec-
tion " 449

XXVI. Summary of the Existing Copyright Laws of
the More Important Countries of the

World (January, 1896) 454

XXVII. The Status of Canada in Regard to Copy-
right (January, 1896) 467

Index 477

The papers for which the name of the author is not specified, are the work of
the compiler.

THE QUESTION OF COPYRIGHT

THE
QUESTION OF COPYRIGHT.

THE LAW OF COPYRIGHT IN THE UNITED
STATES.

Text of the Statutes in force July i, 1895.1

Section 4948. All records and other things relat-
ing to copyrights and required by law to be pre-
served, shall be under the control of the Librarian
of Congress, and kept and preserved in the Library
of Congress ; and the Librarian of Congress shall
have the immediate care and supervision thereof,
and, under the supervision of the Joint Committee
of Congress on the Library, shall perform all acts
and duties required by law touching copyrights.

Sec. 4949. The seal provided for the office of the
Librarian of Congress shall be the seal thereof, and

1 From the Revised Statutes of the United States, in force December
1, 1873, as amended by the Acts of June 18, 1874, August I, 1882,
March 3, 1891, and March 2, 1895.
I

2 THE QUESTION OF COPYRIGHT.

by it all records and papers issued from the office,
and to be used in evidence shall be authenticated.

Sec. 4950. The Librarian of Congress shall give a
bond, with sureties, to the Treasurer of the United
States, in the sum of five thousand dollars, with the
condition that he will render to the proper officers
of the Treasury a true account of all moneys received
by virtue of his office.

Sec. 495 i. The Librarian of Congress shall make an
annual report to Congress of the number and descrip-
tion of copyright publications for which entries have
been made during the year.

Sec. 4952. The author, inventor, designer, or pro-
prietor of any book, map, chart, dramatic or musical
composition, engraving, cut, print, or photograph or
negative thereof, or of a painting, drawing, chromo,
statuary, and of models or designs intended to be
perfected as works of the fine arts, and the execu-
tors, administrators, or assigns of any such person,
shall, upon complying with the provisions of this
chapter, have the sole liberty of printing, reprinting,
publishing, completing, copying, executing, finishing,
and vending the same ; and, in the case of a dramatic
composition, of publicly performing or representing
it, or causing it to be performed or represented by
others. And authors or their assigns shall have
exclusive right to dramatize or translate any of their
works, for which copyright shall have been obtained
under the laws of the United States.

Sec. 4953. Copyrights shall be granted for the
term of twenty-eight years from the time of recording
the title thereof, in the manner hereinafter directed.

LAW OF COPYRIGHT IN THE UNITED STATES. 3

SEC. 4954- The author, inventor, or designer, if he
be still living, or his widow or children, if he be
dead, shall have the same exclusive right continued
for the further term of fourteen years, upon record-
ing the title of the work or description of the article
so secured a second time, and complying with all
other regulations in regard to original copyrights,
within six months before the expiration of the first
term. And such person shall, within two months
from the date of said renewal, cause a copy of the
record thereof to be published in one or more news-
papers, printed in the United States, for the space of
four weeks.

Sec. 4955. Copyrights shall be assignable in law
by any instrument of writing, and such assignment
shall be recorded in the office of the Librarian of
Congress within sixty days after its execution ; in
default of which it shall be void as against any subse-
quent purchaser or mortgagee for a valuable con-
sideration, without notice.

SEC. 4956. No person shall be entitled to a copy-
right unless be shall, on or before the day of publi-
cation, in this or any foreign country, deliver at the
office of the Librarian of Congress, or deposit in the
mail within the United States, addressed to the
Librarian of Congress, at Washington, District of
Columbia, a printed copy of the title of the book,
map, chart, dramatic or musical composition, engrav-
ing, cut, print, photograph, or chromo, or a descrip-
tion of the painting, drawing, statue, statuary, or a
model or design, for a work of the fine arts, for
which he desires a copyright ; nor unless he shall

4 THE QUESTION OF COPYRIGHT.

also, not later than the day of the publication there-
of, in this or any foreign, country, deliver at the
office of the Librarian of Congress, at Washington,
District of Columbia, or deposit in the mail, within
the United States, addressed to the Librarian of
Congress, at Washington, District of Columbia, two
copies of such copyright book, map, chart, dramatic
or musical composition, engraving, chromo, cut, print,
or photograph, or in case of a painting, drawing,
statue, statuary, model, or design for a work of the
fine arts, a photograph of the same : Provided, That
in the case of a book, photograph, chromo, or litho-
graph, the two copies of the same required to be
delivered or deposited as above, shall be printed
from type set within the limits of the United States,
or from plates made therefrom, or from negatives, or
drawings on stone made within the limits of the
United States, or from transfers made therefrom.
During the existence of such copyright the importa-
tion into the United States of any book, chromo,
lithograph, or photograph, so copyrighted, or any
edition or editions thereof, or any plates of the same
not made from type set, negatives, or drawings on
stone made within the limits of the United States,
shall be, and it is hereby prohibited, except in the
cases specified in paragraphs 512 to 516, inclusive, in
section two of the act entitled,1 an act to reduce the
revenue and equalize the duties on imports and for

1 Note. — These paragraphs of the Tariff act permit free importa-
tion of books, etc., more than twenty years old, books in foreign
languages, publications imported by the Government, or for societies,
colleges, etc. , and libraries which have been in use one or more years,
brought from abroad by persons or families and not for sale.

LAW OF COPYRIGHT IN THE UNITED STATES. 5

other purposes, approved October I, 1890; and ex-
cept in the case of persons purchasing for use and
not for sale, who import, subject to the duty there-
on, not more than two copies of such book at any
one time ; and, except in the case of newspapers
and magazines, not containing in whole or in part
matter copyrighted under the provisions of this
act, unauthorized by the author, which are hereby
exempted from prohibition of importation :

Provided, nevertheless, That in the case of books in
foreign languages, of which only translations in
English are copyrighted, the prohibition of importa-
tion shall apply only to the translation of the same,
and the importation of the books in the original
language shall be permitted.

SEC. 4957. The Librarian of Congress shall record
the name of such copyright book, or other article,
forthwith in a book to be kept for that purpose, in
the words following : " Library of Congress, to wit :

Be it remembered that on the day of

A. B., of hath deposited in this office the title

of a book, (map, chart, or otherwise, as the case
may be, or description of the article,) the title or
description of which is in the following words, to
wit : (here insert the title or description,) the right
whereof he claims as author, (originator, or pro-
prietor, as the case may be,) in conformity with the
laws of the United States respecting copyrights. C.
D., Library of Congress." And he shall give a copy
of the title or description under the seal of the
Librarian of Congress, to the proprietor, whenever
he shall require it.

6 THE QUESTION OF COPYRIGHT.

Sec. 4958. The Librarian of Congress shall receive
from the persons to whom the services designated
are rendered, the following fees: 1. For recording
the title or description of any copyright book or other
article, fifty cents. 2. For every copy under seal
of such record actually given to the person claiming
the copyright, or his assigns, fifty cents. 3. For re-
cording and certifying any instrument of writing for
the assignment of a copyright, one dollar. 5. For
every copy of an assignment, one dollar. All fees
so received shall be paid into the Treasury of the
United States : Provided, That the charge for record-
ing the title or description of any article entered for
copyright, the production of a person not a citizen
or resident of the United States, shall be one dollar,
to be paid as above into the Treasury of the United
States, to defray the expenses of lists of copyrighted
articles as hereinafter provided for.

And it is hereby made the duty of the Librarian of
Congress to furnish to the Secretary of the Treasury
copies of the entries of titles of all books and other
articles wherein the copyright had been completed
by the deposit of two copies of such book printed
from type set within the limits of the United States,
in accordance with the provisions of this act, and by
the deposit of two copies of such other article made
or produced in the United States ; and the Secretary
of the Treasury is hereby directed to prepare and
print, at intervals of not more than a week, catalogues
of such title-entries for distribution to the collectors
of customs of the United States and to the post-
masters of all post offices receiving foreign mails, and

LAW OF COPYRIGHT IN THE UNITED STATES. J

such weekly lists, as they are issued, shall be fur-
nished to all parties desiring them, at a sum not
exceeding five dollars per annum ; and the Secretary
and the Postmaster General are hereby empowered
and required to make and enforce such rules and
regulations as shall prevent the importation into the
United States, except upon the conditions above
specified, of all articles prohibited by this act.

Sec. 4959. The proprietor of every copyright book
or other article shall deliver at the office of the Li-
brarian of Congress, or deposit in the mail, addressed
to the Librarian of Congress, at Washington, Dis-
trict of Columbia, a copy of every subsequent edition
wherein any substantial changes shall be made : Pro-
vided, however, That the alterations, revisions, and
additions made to books by foreign authors, hereto-
fore published, of which new editions shall appear
subsequently to the taking effect of this act, shall be
held and deemed capable of being copyrighted as
above provided for in this act, unless they form a
part of the series in course of publication at the time
this act shall take effect.

Sec. 4960. For every failure on the part of the
proprietor of any copyright to deliver, or deposit in
the mail, either of the published copies, or descrip-
tion, or photograph, required by Sections 4956 and
4959, the proprietor of the copyright shall be liable
to a penalty of twenty-five dollars, to be recovered
by the Librarian of Congress, in the name of the
United States, in an action in the nature of an action
of debt, in any district court of the United States
within the jurisdiction of which the delinquent may
reside or be found.

8 THE QUESTION OF COPYRIGHT.

SEC. 4961. The postmaster to whom such copy-
right book, title, or other article is delivered, shall, if
requested, give a receipt therefor ; and when so de-
livered he shall mail it to its destination.

Sec. 4962. No person shall maintain an action for
the infringement of his copyright unless he shall
give notice thereof by inserting in the several copies
of every edition published, on the title-page, or the
page immediately following, if it be a book ; or if a
map, chart, musical composition, print, cut, engrav-
ing, photograph, painting, drawing, chromo, statue,
statuary, or model or design intended to be per-
fected and completed as a work of the fine arts, by
inscribing upon some visible portion thereof, or of
the substance on which the same shall be mounted,
the following words, viz. : " Entered according to

act of Congress, in the year , by A. B., in the

office of the Librarian of Congress, at Washington ; "
or, at his option, the word " Copyright," together
with the year the copyright was entered, and the
name of the party by whom it was taken out, thus :
" Copyright, 18—, by A. B."

Sec. 4963. Every person who shall insert or im-
press such notice, or words of the same purport, in
or upon any book, map, chart, dramatic or musical
composition, print, cut, engraving, or photograph, or
other article, for which he has not obtained a copy-
right, shall be liable to a penalty of one hundred
dollars, recoverable one-half for the person who shall
sue for such penalty, and one-half to the use of the
United States.

Sec. 4964. Every person who, after the recording

LAW OF COPYRIGHT IN THE UNITED STATES. 9

of the title of any book and the depositing of two
copies of such book as provided by this act, shall,
contrary to the provisions of this act, within the
term limited, and without the consent of the pro-
prietor of the copyright first obtained in writing,
signed in the presence of two or more witnesses,
print, publish, dramatize, translate, or import, or,
knowing the same to be so printed, published, drama-
tized, translated, or imported, shall sell or expose to
sale any copy of such book, shall forfeit every copy
thereof to such proprietor, and shall also forfeit and
pay such damages as may be recovered in a civil
action by such proprietor in any court of competent
jurisdiction.

SEC. 4965. If any person, after the recording of
the title of any map, chart, dramatic or musical com-
position, print, cut, engraving, or photograph, or
chromo, or of the description of any painting, draw-
ing, statue, statuary, or model or design intended to
be perfected and executed as a work of the fine arts
as provided by this act, shall, within the term limited,
contrary to the provisions of this act, and without
the consent of the proprietor of the copyright first
obtained in writing, signed in presence of two or
more witnesses, engrave, etch, work, copy, print,
publish, dramatize, translate, or import, either in
whole or in part, or by varying the main design,
with intent to evade the law, or knowing the same
to be so printed, published, dramatized, translated,
or imported, shall sell or expose to sale any copy of
such map or other article, as aforesaid, he shall for-
feit to the proprietor all the plates on which the

IO THE QUESTION OF COPYRIGHT.

same shall be copied, and every sheet thereof, either
copied or printed, and shall further forfeit one dollar
for every sheet of the same found in his possession,
either printing, printed, copied, published, imported,
or exposed for sale ; and in case of a painting, statue,
or statuary, he shall forfeit ten dollars for every copy
of the same in his possession, or by him sold or ex-
posed for sale ; one-half thereof to the proprietor and
the other half to the use of the United States. Pro-
vided, however, That in case of any such infringement
of the copyright of a photograph made from any
object not a work of fine arts, the sum to be recov-
ered in any action brought under the provisions of
this section shall be not less than one hundred dol-
lars, nor more than five thousand dollars, and, Pro-
vided further, That in case of any such infringement
of the copyright of a painting, drawing, statue, en-
graving, etching, print, or model or design for a work
of the fine arts or of a photograph of a work of the
fine arts, the sum to be recovered in any action
brought through the provisions of this section shall
be not less than two hundred and fifty dollars, and
not more than ten thousand dollars. One-half of all
the foregoing penalties shall go to the proprietors of
the copyright and the other half to the use of the
United States.1

Sec. 4966. Any person publicly performing or
representing any dramatic composition for which a
copyright has been obtained, without the consent of
the proprietor thereof, or his heirs or assigns, shall

1 This is the provision of the act of March, 1891, as amended by
the Covert act of March, 1895.

LAW OF COPYRIGHT IN THE UNITED STATES. I I

be liable for damages therefor ; such damages in all
cases to be assessed at such sum, not less than one
hundred dollars for the first, and fifty dollars for
every subsequent performance, as to the court shall
appear to be just.

SEC. 4967. Every person who shall print or pub-
lish any manuscript whatever, without the consent
of the author or proprietor first obtained, shall be
liable to the author or proprietor for all damages
occasioned by such injury.

Sec. 4968. No action shall be maintained in any
case of forfeiture or penalty under the copyright
laws, unless the same is commenced within two years
after the cause of action has arisen.

SEC. 4969. In all actions arising under the laws
respecting copyrights the defendant may plead the
general issue, and give the special matter in evidence.

SEC. 4970. The circuit courts, and district courts
having the jurisdiction of circuit courts, shall have
power, upon bill in equity, filed by any party ag-
grieved, to grant injunctions to prevent the vio-
lation of any right secured by the laws respecting
copyrights, according to the course and principles of
courts of equity, on such terms as the court may
deem reasonable.

Sec. — . [Approved June 18, 1874, to take effect
August 1, 1874.] In the construction of this act the
words " engraving," " cut," and " print," shall be ap-
plied only to pictorial illustrations or works con-
nected with the fine arts, and no prints or labels
designed to be used for any other articles of manu-
facture shall be entered under the copyright law, but

12 THE QUESTION OF COPYRIGHT.

may be registered in the Patent Office. And the
Commissioner of Patents is hereby charged with the
supervision and control of the entry or registry of
such prints or labels, in conformity with the regu-
lations provided by law as to copyright of prints,
except that there shall be paid for recording the
title of any print or label, not a trade-mark, six dol-
lars, which shall cover the expense of furnishing a
copy of the record, under the seal of the Commis-
sioner of Patents, to the party entering the same.

SEC. — . [Approved August I, 1882.] That manu-
facturers of designs for molded decorative articles,
tiles, plaques, or articles of pottery or metal, subject
to copyright, may put the copyright mark prescribed
by section forty-nine hundred and sixty-two of the
Revised Statutes, and acts additional thereto, upon
the back or bottom of such articles, or in such other
place upon them as it has heretofore been usual for
manufacturers of such articles to employ for the
placing of manufacturers', merchants', and trade-
marks thereon.

Sec. 11. [Approved March 3, 1891, to take effect
July 1, 1 89 1.] That for the purpose of this act each
volume of a book in two or more volumes, when such
volumes are published separately, and the first one
shall not have been issued before this act shall take
effect, and each number of a periodical shall be con-
sidered an independent publication, subject to the
form of copyrighting as above.

Sec. 12. That this act shall go into effect on the
first day of July, Anno Domini eighteen hundred
and ninety-one.

LAW OF COPYRIGHT IN THE UNITED STATES 1 3

Sec. 13. [Approved March 3, 1 891, to take effect
July 1, 1 891.] That this act shall only apply to a
citizen or subject of a foreign state or nation when
such foreign state or nation permits to citizens of the
United States of America the benefit of copyright
on substantially the same basis as to its own citizens ;
or when such foreign state or nation is a party to
an international agreement which provides for reci-
procity in the granting of copyright, by the terms of
which agreement the United States of America may
at its pleasure become a party to such agreement.
The existence of either of the conditions aforesaid
shall be determined by the President of the United
States, by proclamation made from time to time as
the purposes of this act may require.

Directions for Securing Copyrights.

Under the Revised Acts of Congress, including the Provisions for
Foreign Copyright, by Act of March 3, 1891.

I. A printed copy of the title of the book, map,
chart, dramatic or musical composition, printed title
engraving, cut, print, photograph, or required.
chromo, or a description of the painting, drawing,
statue, statuary, or model or design for a work of
the fine arts, for which copyright is desired, must be
delivered to the Librarian of Congress or deposited
in the mail, within the United States, prepaid, ad-
dressed Librarian of Congress, Washington, D. C.
This may be done on or before day of publication
in this or any foreign country.

14 THE QUESTION OF COPYRIGHT.

The printed title required may be a copy of the
title-page of such publications as have title-pages.
what style of In other cases the title must be printed ' ex-
prmt. pressly for copyright entry, with name of

claimant of copyright. The style of type is imma-
terial, and the print of a typewriter will be accepted.
But a separate title is required for each entry, and
each title must be printed on paper as large as com-
mercial note. The title of a periodical must include
the date and number ; and each number of the peri-
odical requires a separate entry of copyright.

Blank forms of application furnished

Applications.

to applicants.

2. The legal fee for recording each copyright claim

is 50 cents, and for a copy of this record

(or certificate of copyright under seal of

the office) an additional fee of 50 cents is required,

making $1, if certificate is wanted, which will be

mailed as soon as reached in the records.

No money is to be placed in any package of books,
music, or other publications. A bank check, to order,
avoids all risk.

For publications which are the production of per-
sons not citizens or residents of the United States,
the fee for recording title is $1, and 50 cents addi-
tional for a copy of the record. Certificates covering
more than one entry in one certificate are not issued.

Bank checks, money orders, and currency only
taken for fees. No postage stamps received.

Two copies 3- Not later than the day of publi-

required. cation in this country or abroad, two

complete copies of the best edition of each book or

LAW OF COPYRIGHT IN THE UNITED STATES. I 5

other article must be delivered, or deposited in the
mail within the United States, addressed Librarian
of Congress, Washington, D. C. to perfect the
copyright.

The freight or postage must be prepaid, or the
publications inclosed in parcels covered by printed
Penalty Labels, furnished by the Libra-

, . , , . , , Free by mail.

nan, in which case they will come FREE
by mail {not express), without limit of weight, ac-
cording to rulings of the Post-Office Department.
Books must be printed from type set in To be of American
the United States, or from plates made ™anufacture.
therefrom ; photographs from negatives made in the
United States ; chromos and lithographs from draw-
ings on stone or transfers therefrom made in the
United States.

Without the deposit of copies above required the
copyright is void, and a penalty of $25
is incurred. No copy is required to be
deposited elsewhere.

The law requires one copy of each new edition,
wherein any substantial changes are

New editions.

made, to be deposited with the Libra-
rian of Congress.

4. No copyright is valid unless notice is given by
inserting; in every copy published, on Notice of copy-

0 J x J x m right to be given

the title-page or the page following, if by imprint.
it be a book ; or if a map, chart, musical composi-
tion, print, cut, engraving, photograph, painting,
drawing, chromo, statue, statuary, or model or de-
signs intended to be perfected as a work of the fine
arts, by inscribing upon some portion thereof, or on

1 6 THE QUESTION OF COPYRIGHT.

the substance on which the same is mounted, the
following words, viz. : "Entered according to act of

claimant's name Congress, in the year , by , in

to be printed. fjie office of the Librarian of Congress,
at Washington" or at the option of the person enter-
ing the copyright, the words : " Copyright, 18 — ,

by r

The law imposes a penalty of $100 upon any per-
Penaity for false son wno has not obtained copyright
claim- who shall insert the notice, "Entered

according to act of Congress," or "Copyright" or
words of the same import, in or upon any book or
other article.

5. The copyright law secures to authors and their
Translations and assigns the exclusive right to translate
dramas. or ^-0 dramatize any of their works ; no
notice or record is required to enforce this right.

6. The original term of a copyright runs for
Duration of copy- twenty-eight years. Within six months
risht- before the end of that time, the author
or designer, or his widow or children, may secure
a renewal for the further term of fourteen years,
making forty-two years in all. Applications for

renewal must be accompanied by a

Renewals. . ... . . . ...

printed title and fee ; and by explicit
statement of ownership, in the case of the author or
of relationship, in the case of his heirs, and must
state definitely the date and place of entry of the
original copyright. Within two months from date
of renewal the record thereof must be advertised in
an American newspaper for four weeks.

7. The time of publication is not limited by any

LAW OF COPYRIGHT IN THE UNITED STATES. 1 7

law or regulation, but the courts have held that it
should take place " within a reasonable time." A
copyright may be secured for a pro- Time of pubii-
jected as well as for a completed work. cation-
But the law provides for no caveat, or notice of
interference — only for actual entry of title.

8. Copyrights arc assignable by any instrument
of writing. Such assignment to be

. Assignments.

valid, is to be recorded in the office of
the Librarian of Congress within sixty days from
execution. The fee for this record and certificate is
one dollar, and for a certified copy of any record of
assignment one dollar.

9. A copy of the record (or duplicate certificate)
of any copyright entry will be fur- Copies or dupii-

.,, , ir,i rr iii cate certificates.

nished, under seal of the office, at the
rate of fifty cents each.

10. In the case of books published in more than
one volume, or of periodicals published serials or separate
in numbers, or of engravings, photo- Publicatl0ns-
graphs, or other articles published with variations, a
copyright must be entered for each volume or part
of a book, or number of a periodical, or variety, as
to style, title, or inscription, of any other article.
To complete the copyright on a book published seri-
ally in a periodical, two copies of each serial part as
well as of the completed work (if published sepa-
rately), should be deposited.

11. To secure copyright for a painting, statue, or

model or design intended to be per- copyright for

fected as a work of the fine arts, a defi- workso£ art-

nite title and description must accompany the appli-
2

1 8 THE QUESTION OF COPYRIGHT.

cation for copyright, and a mounted photograph of
the same, as large as " cabinet size," mailed to the
Librarian of Congress not later than the day of pub-
lication of the work or design.

The fine arts, for copyright purposes, include only
painting and sculpture, and articles of

Fine arts. .

merely ornamental and decorative art
should be sent to the Patent Office, as subjects for
Design Patents.

12. Copyrights can not be granted upon trade-
No labels or marks, nor upon names of companies,
names copyright, libraries, or articles, nor upon an idea
or device, nor upon prints or labels intended to be
used for any article of manufacture. If protection
for such names or labels is desired, application must
be made to the Patent Office, where they are regis-
tered, if admitted, at a fee of $6 for labels, and $25
for trade-marks.

13. The provisions as to copyright entry in the
Foreign or inter- United States by foreign authors, etc.,
national copyright, ^y act 0f Congress approved March 3,

1 89 1 (which took effect July 1, 1 891), are the same
as the foregoing, except as to productions of persons
not citizens or residents, which must
cover return postages, and are $1 for
entry, or $1.50 for entry and certificate of entry
(equivalent to 4s. $d. or 6s. yd.). All publications
must be delivered to the Librarian at Washington
free of charge. The free penalty labels can not be
used outside of the United States.

The right of citizens or subjects of a foreign na-
tion to copyright in the United States extends by

LAW OF COPYRIGHT IN THE UNITED STATES. 1 9

Presidential proclamations to Great Britain, France,
Germany, Italy, Spain, Portugal, Belgium, Denmark,
and Switzerland ; and Americans can secure copy-
right in those countries. For this, direct arrange-
ments must be made abroad. The Librarian of
Congress can not take charge of any foreign copy-
right business.1

14. Every applicant for a copyright should state
distinctly the full name and residence Full name of pro-
of the claimant, whether book or other prietor required,
publication, and whether the right is claimed as
author, designer, or proprietor. No affidavit or wit-
ness to the application is required.

Office of the Librarian of Congress,
Washington, 1895.

Foreign States with which the United States is
in Copyright Relations.

The provisions of the Act of 1891 having to do
with International Copyright, are (January, 1896) in
force with the following States :

Belgium,
France,
Great Britain,
Switzerland,

By Proclamation of the Presi-
dent, July 4, 1 89 1.

1 American authors, artists, and composers who desire to secure
for their productions the protection of copyright in the States with
which the United States has entered into copyright relations, must
fulfil the requirements of the Statutes of those States. The pro-
visions of these Statutes are given in a later chapter of this volume.
— Editor.

20 THE QUESTION OF COPYRIGHT.

Germany, by Treaty, March 8, 1892.
Italy, by Proclamation, Oct. 31, 1892.
Denmark, by Proclamation, May 8, 1893.
Portugal, by Proclamation, July 20, 1895.
Spain, by Proclamation, July 15, 1895.
Mexico, by Proclamation, Feb. 27, 1896.

Amendments to the Copyright Act Proposed
Since July, 1891.

1. The Hicks Bill. — In September, 1894, an
amendment to the Copyright Act was introduced
by Representative Hicks, of Pennsylvania, which
had for its purpose the application of the manufac-
turing requirement to engravings and etchings;
under the Hicks provision, art productions of this
class were to be " printed from plates engraved or
etched within the limits of the United States." A
second division of the Hicks Bill excepted from the
works the contents of which were to be protected
by copyright " daily or weekly newspapers devoted
in whole or in part to the news of the day."

The purpose of the first provision was stated to
be the protection of newspapers against dispropor-
tioned damages in connection with the reproduction
of photographs or of popular works of art, which
were the work of alien designers. Its results would
have been the undermining of copyright in foreign
works of art, the protection of which constituted
practically the only advantage secured by the states
of Europe (other than England) under the American
Act of 1 89 1. The alleged purpose of the second
provision (which was presented at the instance of

LAW OF COPYRIGHT IN THE UNITED STATES. 21

the smaller papers) was to prevent what they called
" a monopoly of news." The result would have
been to destroy the copyright property in any liter-
ary or art productions published not only in the
daily papers, but in such journals as Harper s
Weekly or Frank Leslie's, which are in part devoted
to " news of the da3'." Strong protests were made
against the bill by European artists and art publish-
ers, and by the publishers of literary illustrated
weeklies and their contributors. Concerted action
was taken, on behalf of all the copyright interests
assailed by the Authors' and Publishers' Copyright
Leagues, and the bill was killed in Committee.

2. The Covert Amendment. — In January, 1895,
Representative Covert of New York, introduced a
bill which had for its purpose the relief of the news-
papers from excessive penalties in connection with
the infringement of art designs, photographs, etc.
This bill as first worded would have constituted a
serious impairment of the protection of copyright
property.

After consultation between the representatives of
the Authors' and Publishers' Copyright Leagues and
those of the newspaper publishers, the Covert amend-
ment was modified. The original draft provided
that the total sum to be " recovered for any one in-
fringement should not exceed double the value of
the printing, drawing, object or thing infringed
upon, copied, issued, or edited in violation of law."
As finally worded the amendment read :

" Provided, however, that in the case of any such

22 THE QUESTION OF COPYRIGHT.

infringement of the copyright of a photograph made
from an object not a work of the fine arts, the sum
to be recovered in any action brought under the
provisions of this section shall be not less than $100,
nor more than $5000, and Provided further, In case
of any such infringement of the copyright of a print-
ing, drawing, statue, engraving, etching, print, or
model, or design not a work of the fine arts, the sum
to be recovered in any action brought through the
provisions of this section shall not be less than $250
and not more than $10,000."

The act was passed in March, 1895, becoming part
of the copyright law, and constituting the first
amendment to the international copyright provi-
sions.

3. The Cummings* Amendment, in re Stage-right.
— In February, 1896, Mr. Amos Cummings, of New
York, introduced in the House of Representatives a
bill which had for its purpose the more thorough
protection of the rights of dramatic authors. These
authors and their assigns, the managers who are in-
terested with them in the copyright protection of
plays, had for some years found occasion to complain
of the inadequacy of the protection accorded to
their property under the existing methods of the
Federal Courts. Under the existing law, an injunc-
tion granted by one Federal Court is preventive only
within the judicial circuit of that Court. There are
within the territory of the United States nine of
these Judicial Circuits. If an injunction be granted,
for instance, by the United States Court in the City
of New York, restraining the piratical performance

LAW OF COPYRIGHT IN THE UNITED STATES. 23

of a play, such injunction has force only within the
judicial circuit of New York City. The pirate may
produce the play in Philadelphia, Boston, or any-
where else outside of that circuit, and the only way
to reach him is to secure another injunction from the
court of the circuit within which the latter injunc-
tion is accorded. Even then, the offender is still at
liberty to repeat his operations in a third circuit,
and so on for the entire series of nine. The text of
the Cummings' Bill, which will probably become law
by the time the printing of this volume is completed,
is as follows :

A Bill to Amend Title Sixty, Chapter Three, of the Revised Statutes,
relating to copyrights.

Be it enacted oy the Senate and House of Representatives of the
United States of America in Congress assembled, That section forty-
nine hundred and sixty-six of the Revised Statutes be, and the same
is hereby, amended so as to read as follows :

Sec. 4966. Any person publicly performing or representing any
dramatic or operatic composition for which a copyright has been ob-
tained, without the consent of the proprietor of said dramatic or
operatic composition or of his heirs or assigns, shall be liable for dam-
ages therefor, such damages in all cases to be assessed at such sum,
not less than one hundred dollars for the first and fifty dollars for
every subsequent performance, as to the court shall appear to be just ;
and if it be determined that such unlawful performing and represen-
tation was wilful and for profit, in addition thereto, such person or
persons shall be guilty of a misdemeanor and liable to imprisonment
for a period not exceeding one year. Any injunction that may be
granted by any circuit court of the United States, or by any judge
thereof, restraining and enjoining the performance or representation
of any such dramatic or operatic composition may be served on the
parties against whom such injunction may be granted anywhere in
the United States, and shall be operative and may be enforced by
proceedings to punish for contempt or otherwise by any other circuit

24 THE QUESTION OF COPYRIGHT.

court or judge in the United States : but the defendants in said
action, or any or either of them, may make a motion in any other
circuit in which he or they may be engaged in performing or repre-
senting said dramatic or operatic composition to dissolve or set aside
the said injunction upon such reasonable notice to the plaintiff as the
circuit court or the judge before whom said motion shall be made
shall deem proper ; service of said motion to be made on the plaintiff
in person or on his attorneys in the action. The circuit courts or
judges thereof shall have jurisdiction to enforce said injunction and
to hear and determine a motion to dissolve the same, as herein pro-
vided, as fully as if the action were pending or brought in the circuit
in which said motion is made.

The clerk of the court, or judge granting the injunction, shall,
when required so to do by the court hearing the application to dis-
solve or enforce said injunction, transmit without delay to said court
a certified copy of all the papers on which the said injunction was
granted that are on file in his office.

4. The Treloar Bill. — In February, 1896, Mr.
Treloar of Missouri introduced in the House of
Representatives a Bill the general purpose of which
was specified as the " revision of the copyright law."

Mr. Treloar had incorporated in his measure (with
some changes) the plan for the organization of a
Bureau of Copyrights which should be distinct from
the Library of Congress. He had also included the
substance of The Cummings' Bill then pending in
the House, the purpose of which was to secure a
more adequate protection for the rights of dramatic
authors. The original features of his Bill can be
summarized as follows :

1. The extension of the first term of copyright
from twenty-eight to forty years and of the second
term (to be secured by the author if living and
otherwise by his widow or children) from fourteen

LAW OF COPYRIGHT IN THE UNITED STATES. 25

to twenty years, making the total term sixty years
instead of forty-two ; 2. The restriction to citizens
of the United States of the privilege of securing
copyright, (which privilege, under all acts prior to
that of 1 891, had been conceded to residents without
regard to citizenship, and which, under the Act of
1 891, had been extended to citizens of other coun-
tries whose government extended similar copyright
privileges to American citizens) ; 3. The addition
to the list of articles which, in order to secure the
privileges of copyright in the United States, must be
wholly manufactured within the limits of the United
States, of musical compositions and of reproductions
of works of art in the form of engravings, cuts, or
prints ; 4. The limitation to $5000 of the total
penalty to be collected for the infringement of the
copyright of a literary production.

The clause in regard to the instituting of a Bureau
of Copyrights, provided for a chief of such Bureau
to be entitled a commissioner (in the Bankhead and
Morrill Bills he was to be styled register) and for a
staff of no less than thirty-eight assistants. (The
Bankhead and Morrill Bills made provision for but
three assistants.) The total expense of the Bureau
on the scheme proposed would amount to not less
than $50,000, while the Bankhead and Morrill Bills
estimated that the annual cost of such Bureau need
not exceed $7500. The Treloar estimate was doubt-
less very much in excess of the actual business
requirements of such a Bureau, while the Bank-
head provision was decidedly inadequate. The an-
nual receipts from the copyright fees amounted (in

26 THE QUESTION OF COPYRIGHT.

1895) to something over $35,000. It was the calcu-
lation of good judges that the work of the copyright
Bureau ought to be performed efficiently for a
sum not exceeding $20,000, with provision for such
gradual increase of the clerical force as the normal
development of the business would necessitate.

The Bill was referred in due course to the House
Committee on Patents. The Authors' and Pub-
lishers' American Leagues promptly expressed their
entire disapproval of its chief provisions. In the
resolutions adopted in these Leagues, it was pointed
out that the Bill would, if it became law, bring about
the revocation of the copyright granted to foreign
producers of works of art, and would add very ma-
terially to the difficulties in the way of securing copy-
right for foreign works of literature, if it did not
entirely nullify the copyright privileges of foreign
authors. It was further contended that the limita-
tion to $5000 of the damages to be secured for the
infringement of literary property, a penalty which
had heretofore been left proportionate to the actual
extent of the damage caused, was inequitable and
was contrary to all precedents of existing copy-
right law.

The unnecessary outlay planned for the mainte-
nance of the Bureau of Copyright constituted a dis-
tinctive though less important objection to the Bill.
The extention of the term of copyright, while de-
sirable in itself, was not to be considered as an offset
to the serious defects above specified. It was, further,
a subject which was not to be passed upon hastily,
but which called for mature consideration in connec-

LAW OF COPYRIGHT IN THE UNITED STATES. 2J

tion with the experience of foreign States and with
the conclusions arrived at in these States.

At the time this chapter is going through the
press, the Treloar Bill is still under consideration
in Committee, but there is supposed to be no pos-
sible prospect of its securing a majority in either the
House or the Senate, while in the event of the
measure being passed by Congress, it is assumed
that it will certainly meet with the disapproval of
the Executive.

II.

SUMMARY OF COPYRIGHT LEGISLA-
TION IN THE UNITED STATES.

By R. R. Bowker.

The Constitution of the United States authorized
Congress "to promote the progress of science and
useful arts by securing for limited times, to authors
and inventors, the exclusive right to their respect-
ive writings and discoveries." Previous to its adop-
tion, in 1787, the nation had no power to act, but
on Madison's motion, Congress, in May, 1783, rec-
ommended the States to pass acts securing copy-
right for fourteen years. Connecticut, in January,
1783, and Massachusetts, in March, 1783, had al-
ready provided copyright for twenty-one years.
Virginia, in 1785, New York and New Jersey, in
1786, also passed copyright acts, and other States
were considering them — thanks to the vigorous
copyright crusade of Noah Webster, who travelled
from capital to capital — when the United States
Statute of 1790 made them unnecessary. This act-
followed the precedent of the English act of 1710,
and gave to authors who were citizens or residents,
their heirs and assigns, copyrights in books, maps,
and charts for fourteen years, with renewal for four-
teen years more, if the author were living at expi-

ration of the first term. A printed title must be
deposited before publication in the clerk's office of
the local United States District Court ; notice must
be printed four times in a newspaper within two
months after publication ; a copy must be deposited
with the United States Secretary of State within
six months after publication ; the penalties were
forfeiture and a fine of fifty cents for each sheet
found, half to go to the copyright owner, half to
the United States ; a remedy was provided against
unauthorized publication of manuscripts.

This original and fundamental act was followed
by others — in 1802, requiring copyright record to
be printed on or next the title-page, and including
designs, engravings, and etchings ; in 18 19, giving
United States Circuit Courts original jurisdiction
in copyright cases; in 1831 (a consolidation of pre-
vious acts), including musical compositions, extend-
ing the term to twenty-eight years, with renewal
for fourteen years to author, widow, or children,
doing away with the newspaper notice except for
renewals, and providing for the deposit of a copy
with the district clerk (for transmission to the Sec-
retary of State) within three months after pub-
lication ; in 1834, requiring record of assignment in
the court of original entry ; in 1846 (the act estab-
lishing the Smithsonian Institution), requiring one
copy to be delivered to that, and one to the Library
of Congress ; in 1856, securing to dramatists the
right of performance; in 1859, repealing the pro-
vision of 1846 for the deposit of copies, and making
the Interior Department instead of the State De-

30 THE QUESTION OF COPYRIGHT.

partment the copyright custodian ; in 1861, provid-
ing for appeal in all copyright cases to the Supreme
Court ; in 1865, one act again requiring deposit with
the Library of Congress, within one month from publi-
cation, another including photographs and negatives ;
in 1867, providing $25 penalty for failure to deposit.
This makes twelve acts bearing on copyright up to
1870, when a general act took the place of all, in-
cluding " paintings, drawings, chromos, statues, statu-
ary, and models or designs intended to be perfected
as works of the fine arts." This did away with the
local District Court system of registry, and made the
Librarian of Congress the copyright officer, with
whom printed title must be filed before, and two
copies deposited within ten days after, publication.
In 1873-74 the copyright act was included in the Re-
vised Statutes as Sections 4948 to 4971 (also see
§§ 629 and 699), and in 1874 an amendatory act made
legal a short form of record, " Copyright, 18 — , by
A. B.," and relegated labels to the Patent Office.

The act of 1790 received an interpretation, in
1834, in the case of Wheaton vs. Peters (rival law
reports), at the bar of the United States Supreme
Court, which placed copyright in the United States
exactly in the status it held in England after the
decision of the House of Lords in 1774. The court
referred directly to that decision as the ruling prec-
edent, and declared that by the statute of 1790
Congress did not affirm an existing right, but created
a right. It stated also that there was no common
law of the United States, and that (English) com-
mon law as to copyright had not been adopted in

Pennsylvania, where the case arose. So late as
1880, in Putnam vs. Pollard, claim was made that
this ruling decision did not apply in New York,
which, in its statute of 1786, expressly "provided,
that nothing in this act shall extend to, affect, prej-
udice, or confirm the rights which any person may
have to the printing or publishing of any books or
pamphlets at common law, in cases not mentioned
in this act." But the New York Supreme Court
decided that the precedent of Wheaton vs. Peters
nevertheless held.

As in the English case of Donaldsons vs. Beckett,
the decision in the American ruling case came from
a divided court. The opinion was handed down by
Justice McLean, three other judges agreeing, Jus-
tices Thompson and Baldwin dissenting, a seventh
judge being absent. The opinions of the dissenting
judges (see Drone, p. 43 ct seq.) constitute one of
the strongest statements ever made of natural rights
in literary property, in opposition to the ruling that
the right is solely the creature of the statute. " An
author's right," says Justice Thompson, "ought to
be esteemed an inviolable right established in sound
reason and abstract morality."

The application of copyright law, unlike that re-
garding patents, is solely a question of the courts.
The Librarian of Congress is simply an officer of
record, and makes no decisions, as is well stated in
his general circular in reply to queries :

" I have to advise you that no question concerning the validity of
a copyright can be determined under our laws by any other authority
than a United States Court. This office has no discretion or author-

32 THE QUESTION OF COPYRIGHT.

ity to refuse any application for a copyright coming within the pro-
visions of the law, and all questions as to priority or infringement
are purely judicial questions, with which the undersigned has nothing
to do.

" A certificate of copyright is prima facie evidence of an exclusive
title, and is highly valuable as the foundation of a legal claim to the
property involved in the publication. As no claim to exclusive
property in the contents of a printed book or other article can be
enforced under the common law, Congress has very properly pro-
vided the guarantees of such property which are embodied in the
' Act to revise, consolidate, and amend the statutes relating to patents
and copyrights,' approved July S, 1870. If you obtain a copyright
under the provisions of this act, you can claim damages from any
person infringing your rights by printing or selling the same article ;
but upon all questions as to what constitutes an infringement, or
what measure of damages can be recovered, all parties are left to
their proper remedy in the courts of the United States."

The many perplexities that arise under our com-
plicated and unsatisfactory law, as it stands at pres-
ent, suggest the need here, as in England, of a
thorough remodeling of our copyright system.

December, 1885.

III.

HENRY CLAYS REPORT IN FAVOR OF
INTERNATIONAL COPYRIGHT.

During the second session of the Twenty-fourth
Congress, on February 16, 1837, Henry Clay in the
Senate made the following report, submitted with
Senate bill No. 223 :

The select committee to which was referred the
address of certain British, and the petition of
certain American, authors, has, according to
order, had the same under consideration, and
begs leave now to report :

1. That, by the act of Congress of 1831, being the
law now in force regulating copyrights, the benefits
of the act are restricted to citizens or residents of
the United States; so that no foreigner, residing
abroad, can secure a copyright in the United States
for any work of which he is the author, however
important or valuable it may be. The object of the
address and petition, therefore, is to remove this
restriction as to British authors, and to allow them
to enjoy the benefits of our law.

2. That authors and inventors have, according to
the practice among civilized nations, a property in
the respective productions of their genius is incon-
testable ; and that this property should be protected

34 THE QUESTION OF COPYRIGHT.

as effectually as any other property is, by law, fol-
lows as a legitimate consequence. Authors and
inventors are among the greatest benefactors of
mankind. They are often dependent, exclusively,
upon their own mental labors for the means of sub-
sistence; and are frequently, from the nature of
their pursuits, or the constitutions of their minds,
incapable of applying that provident care to worldly
affairs which other classes of society are in the habit
of bestowing. These considerations give additional
strength to their just title to the protection of the
law.

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

4. The committee thinks that this distinction in
the condition of the two descriptions of property is
not just, and that it ought to be remedied by some

HENRY CLAY'S REPORT. 35

safe and cautious amendment of the law. Already
the principle has been adopted, in the patent laws,
of extending their benefits to foreign inventions or
improvements. It is but carrying out the same
principle to extend the benefits of our copyright
laws to foreign authors. In relation to the subjects
of Great Britain and France, it will be but a measure
of reciprocal justice; for, in both of those countries,
our authors may enjoy that protection of their laws
for literary property which is denied to their sub-
jects here.

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

6. Acting, then, on the principles of prudence and
caution, by which the committee has thought it
best to be governed, the bill which the committee
intends proposing provides that the protection which
it secures shall extend to those works only which
shall be published after its passage. It is also lim-
ited to the subjects of Great Britain and France;

36 THE QUESTION OF COPYRIGHT.

among other reasons, because the committee has
information that, by their laws, American authors
can obtain there protection for their productions,
but they have no information that such is the case
in any other foreign country. But, in principle, the
committee perceives no objection to considering the
republic of letters as one great community, and
adopting a system of protection for literary property
which should be common to all parts of it. The bill
also provides that an American edition of the foreign
work, for which an American copyright has been
obtained, shall be published within reasonable time.

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

8. The committee cannot anticipate any reason-
able or just objection to a measure thus guarded
and restricted. It may, indeed, be contended and it
is possible that the new work, when charged with
the expense incident to the copyright, may come
into the hands of the purchaser at a small advance
beyond what would be its price if there were no
such charge ; but this is by no means certain. It
is, on the contrary, highly probable that, when the
American publisher has adequate time to issue
carefully an edition of the foreign work, without

HENRY CLAY S REPORT. 3/

incurring the extraordinary expense which he now
has to sustain to make a hurried publication of it,
and to guard himself against dangerous competi-
tion, he will be able to bring it into the market as
cheaply as if the bill were not to pass. But, if that
should not prove to be the case, and if the Ameri-
can reader should have to pay a few cents to com-
pensate the author for composing a work by which
he is instructed and profited, would it not be just
in itself ? Has any reader a right to the use, with-
out remuneration, of intellectual productions which
have not yet been brought into existence, but lie
buried in the mind of genius? The committee
thinks not ; and its members believe that no Amer-
ican citizen would not feel it quite as unjust to
appropriate to himself their future publications,
without any consideration being paid to their for-
eign proprietors, as he would to take the bale of
merchandise, in the case stated, without paying for
it ; and he would the more readily make this trifling
contribution, when it secured to him, instead of the
imperfect and slovenly book now often issued, a
neat and valuable work, worthy of preservation.

9. With respect to the constitutional power to
pass the proposed bill, the committee entertains no
doubt, and Congress, as before stated, has acted on
it. The Constitution authorizes Congress " to pro-
mote the progress of science and useful arts, by
securing, for limited times, to authors and invent-
ors, the exclusive right to their respective writings
and discoveries." There is no limitation of the
power to natives or residents of this country. Such

38 THE QUESTION OF COPYRIGHT.

a limitation would have been hostile to the object
of the power granted. That object was to promote
the progress of science and useful arts. They be-
long to no particular country, but to mankind gen-
erally. And it cannot be doubted that the stimulus
which it was intended to give to mind and genius —
in other words, the promotion of the progress of
science and the arts — will be increased by the mo-
tives which the bill offers to the inhabitants of
Great Britain and France.

10. The committee concludes by asking leave to
introduce the bill which accompanies this report.

The following bill accompanied the report :
A Bill to amend the act entitled " An Act to
amend the several acts respecting copyright."

Be it enacted, etc., That the provisions of the act
to amend the several acts respecting copyrights,
which was passed on the third day of February,
eighteen hundred and thirty-one, shall be extended
to, and the benefits thereof may be enjoyed by,
any subject or resident of the United Kingdom of
Great Britain and Ireland, or of France, in the same
manner as if they were citizens or residents of the
United States, upon depositing a printed copy of
the title of the book, or other work for which a
copyright is desired, in the clerk's office of the
district court of any district in the United States,
and complying with the other requirements of the
said act : Provided, That this act shall not apply to
any of the works enumerated in the aforesaid act,
which shall have been etched or engraved, or
printed and published, prior to the passage of this

HENRY CLAY'S RErORT. 39

act: And provided, also, That, unless an edition of
the work for which it is intended to secure the
copyright shall be printed and published in the
United States simultaneously with its issue in the
foreign country, or within one month after deposit-
ing as aforesaid the title thereof in the clerk's office
of the district court, the benefits of copyright here-
by allowed shall not be enjoyed as to such work.

IV.

THE CONTEST FOR INTERNATIONAL
COPYRIGHT.

By Geo. Haven Putnam.

The history of the movement in this country in
behalf of International Copyright is still to be writ-
ten. I can present here only a brief summary of the
more noteworthy of the earlier events in this history,
accompanied by a more detailed statement of the
work done during the past three years by the Copy-
right Leagues.

In 1837, Henry Clay presented to Congress a
petition of British authors asking for American
copyright. The petition was referred to a select
committee, which included, in addition to Clay,
Webster, Buchanan, and Ewing. The report sub-
mitted by the committee, favoring the petition, was
written by Clay, and is given in this volume.

Between 1837, the date of rendering his report,
and 1842, the bill drafted by Clay on the lines of his
report was presented in the Senate five times. But
one vote upon it was, however, secured in 1840,
when it was ordered to lie upon the table. This
bill was in substantial accord with that just passed,
in requiring American manufacture for the books
securing copyright. Between 1837 and r^42 numer-

CONTEST FOR INTERNATIONAL COPYRIGHT. 4 I

ous petitions favoring International Copyright were
presented to Congress, which were noteworthy as
containing the signatures of nearly all the leading
authors of the country.

During those same five years, 1 837-1 842, the first
International Copyright conventions were being
framed between certain of the European states, the
earliest being that between Prussia and Wurtemberg.

In nearly all these earlier interstate arrangements,
it was made a condition that the work should be
printed within the territory of the country granting
the copyright protection to a foreign author.

In 1838, after the passing of the first International
Copyright Act in Great Britain, Lord Palmerston
invited the American Government to co-operate in
establishing a Copyright Convention between the
two countries.

In 1840, George P. Putnam issued in pamphlet
form an argument in behalf of International Copy-
right, and in the same year a somewhat similar
argument was printed by Cornelius Matthews.

In 1843, Mr. Putnam presented to Congress a
memorial, drafted by himself, and signed by ninety-
seven publishers and printers, in which it was stated
that the absence of an international copyright was
" alike injurious to the business of publishing and
to the best interests of the people at large."

In 1848, a memorial was presented to Congress,
signed by W. C. Bryant, John Jay, George P. Put-
nam, and others, asking for a copyright measure
very similar in principle to that which has just been
enacted. The memorial was ordered printed, and

42 THE QUESTION OF COPYRIGHT.

was referred to a select committee, from which no
report was made.

In 1853, Charles Sumner, then Chairman of the
Senate Committee on Foreign Affairs, interested
himself in the subject, and reported to the Senate
a treaty drafted by Mr. Everett, then Secretary of
State, and himself, to secure copyright with Great
Britain ; but he was not able to obtain a vote upon
it.

In 1853, certain publishing houses in New York
including Charles Scribner, D. Appleton & Co.,
C. S. Francis, Mason Bros., and George P. Putnam,
addressed a letter to Mr. Everett, Secretary of
State, favoring a Copyright Convention with Great
Britain, and suggesting a copyright arrangement
substantially identical in its conditions with that
secured under the present Act.

In 1858, Mr. Edward Jay Morris of Pennsylvania
introduced an International Copyright Bill contain-
ing similar provisions, but the bill was never re-
ported from committee.

In 1868, the American Copyright Association was
formed, at a meeting held in response to a circular
letter, headed " Justice to Authors and Artists."
This letter was issued by a committee composed of
George P. Putnam, Dr. S. Irenaeus Prime, Henry
Ivison, and James Parton. Of this association
W. C. Bryant was made President, George William
Curtis, Vice-President, and E. C. Stedman, Secre-
tary.

In 1867, Mr. Samuel M. Arnell of Tennessee se-
cured the passage of a resolution in the House of

CONTEST FOR INTERNATIONAL COPYRIGHT. 43

Representatives, ordering the joint Library Commit-
tee to inquire into the subject of International Copy-
right and to report. Such a report was presented
in 1868 to the House by Mr. J. D. Baldwin of Mas-
sachusetts, together with a bill based upon a draft
submitted from the Copyright Association of New
York, by W. C. Bryant and George P. Putnam, secur-
ing copyright to foreign authors, with the condition
that their books should be manufactured in this
country. The bill was referred to the joint Com-
mittee on the Library, from which it never emerged.

In 1870, the so-called Clarendon Treaty was pro-
posed through Mr. Thornton, the British Minister
at Washington. The proposed treaty gave to the
authors and artists of each country the privilege of
copyright in the other by registering the work
within three months of the original publication.

In 1871, Mr. Cox introduced a Copyright Bill
practically identical in its provisions with the pre-
vious bill of Mr. Baldwin. This was the first bill
that reached the stage of discussion in the Com-
mittee of the Whole.

In 1872, a bill was drafted by Mr. W. H. Apple-
ton, which provided that the American edition of
the foreign work securing American copyright
should be manufactured in this country, and that
the American registry of copyright should be made
within one month of the date of the original publi-
cation. In the same year the draft of a bill was
submitted by Mr. John P. Morton of Louisville,
under which any American publisher was to be at
liberty to reprint the work of a foreign author, on

44 THE QUESTION OF COPYRIGHT.

the condition of making payment to such author
of a ten per cent, royalty. Later in the year a
similar measure was introduced by Mr. Beck and
Mr. Sherman, providing that the royalty should be
five per cent. Both these bills were referred to the
Library Committee.

In 1873, Senator Lot M. Morrill of Maine re
ported, on behalf of the Library Committee, ad-
versely to the consideration by Congress of any
International Copyright Bill, on the ground that
" there was no unanimity of opinion among those
interested in the measure."

In 1874, Mr. Henry B. Banning of Ohio intro-
duced in the House the sixth International Copy-
right Bill, which gave copyright to foreign authors
on the simple condition of reciprocity. It was
referred to the Committee on Patents, where it
remained.

In 1878, the project for a Copyright Convention,
or treaty, was submitted by Messrs. Harper &
Brothers to Mr. Evarts, then Secretary of State;
and in 1880 the draft of a Convention, substan-
tially identical with the suggestions of Messrs.
Harper, was submitted by Mr. Lowell to Lord
Granville.

In 1883 the American Copyright League was
organized, mainly on the lines of a plan drafted in
1882, by Edward Eggleston and R. W. Gilder.
Mr. George Parsons Lathrop was made Secretary,
and an active campaign was begun in arousing and
educating public opinion on the subject.

In 1882, Mr. Robinson of New York presented a

CONTEST FOR INTERNATIONAL COPYRIGHT. 45

bill giving consideration to the whole subject of
copyright, domestic and international. It was re-
ferred to the Committee on Patents, where it was
buried.

In 1883, the eighth Copyright Bill was introduced
by Mr. Patrick A. Collins of Massachusetts. This
also was buried in the Committee on Patents.

In 1884, the ninth International Copyright Bill
was introduced into the House by Mr. Dorsheimer
of New York. This provided simply for the ex-
tension to foreign authors of the privileges en-
joyed by the citizens or residents of the United
States.

This bill was approved by the Copyright League,
and was favorably reported to the House from the
Committee on the Judiciary, to which it had been
referred. It reached the stage of being discussed
in the House, but a resolution to fix a day for its
final consideration was defeated.

In the same year a bill was introduced in the
House by Mr. English, dealing with International
Copyright in dramatic compositions. It was re-
ferred to the Judiciary Committee, which took no
action.

In 1885, Mr. Lowell accepted the Presidency of
the Copyright League, and Mr. Stedman was made
its Vice-President. In the same year, at the in-
stance of the League, Senator Hawley of Connec-
ticut introduced his Copyright Bill (the text of
which is given in this volume), which was substan-
tially identical with that of Mr. Dorsheimer. The
bill was referred to the Senate Committee on Pat-

46 THE QUESTION OF COPYRIGHT.

ents. It was introduced in the House by Randolph
Tucker of Virginia, and was, like its predecessors,
referred to the Committee on the Judiciary.

In 1884 and in 1885 the annual messages of
Presidents Arthur and Cleveland contained earnest
recommendations for the enactment of some meas-
ure of International Copyright.

January 21, 1886, the twelfth International Copy-
right Bill was brought before the Senate by Jona-
than Chace of Rhode Island, and was referred to
the Committee on Patents.

As Mr. Solberg points out in his clearly presented
record of the fight for copyright, the introduction
of the Chace Bill marked a distinct epoch in the
history of the struggle for International Copyright.
The long work of education through the public
press, the distribution of pamphlets and missionary
addresses, was at last bearing fruit, and in 1886 it
was not so much a question whether there should be
or should not be an International Copyright, but
simply what form the law should take.

The Senate Committee on Patents gave a careful
consideration to the two measures then before them,
the Hawley Bill and the Chace Bill, and took testi-
mony concerning them in four public hearings. On
May 21, 1886, the committee presented a report
recommending the passage of the Chace Bill, but no
further action was secured in the Forty-ninth Con-
gress. Senator Chace was, however, a more persist-
ent champion than the cause of copyright had pre-
viously been fortunate enough to secure, and on
December 12, 1887, in the first session of the Fif-

CONTEST FOR INTERNATIONAL COPYRIGHT. 47

tieth Congress, he reintroduced his bill, which was
again referred to the Committee on Patents.

In November, 1887, the American Copyright
League (which was composed, in the main, of the
authors of the country) voted to its Executive
Committee full discretion to secure the enactment of
such measure of International Copyright as might,
in the judgment of the committee, be found equi-
table and practicable. Armed with this authority,
the Executive Committee decided to use its efforts
to secure the passage of the Chace Bill, the only
measure for which any adequate support in Con-
gress could be depended upon. Of this commit-
tee Edward Eggleston was Chairman, George
Walton Green, Secretary, and R. U. Johnson,
Treasurer.

In December, 1887, the organization was effected
of the American Publishers' Copyright League,
with William H. Appleton as President, A. C.
McClurg as Vice-President, Charles Scribner as
Treasurer, and Geo. Haven Putnam as Secretary.
The Executive Committee of this league was in-
structed to co-operate with the American authors
in securing an International Copyright.

A Conference Committe, was at once formed of
the executive committees of the two leagues, and
every subsequent step in the campaign, until the
passage of the bill in 1891, was taken by this Con-
ference Committee. Mr. Putnam acted as Secre-
tary of the Conference Committee until Novem-
ber, 1889, when he was obliged to give up the post
on the ground of ill-health, and from that time until

48 THE QUESTION OF COPYRIGHT.

the passage of the bill, in March, 1 891, the secretary's
work for the Conference Committee was most ably
carried on by Mr. R. U. Johnson, who had become
Secretary of the Authors' League.

He divided with Mr. Putnam the task of preparing
the documents, but he took upon himself the chief
burden of the correspondence and of the arduous
work in Washington.

Various sojourns were made in Washington by
Mr. Putnam, in connection particularly with the
shaping of evidence for the committees. The most
important service in the capital, however, was prob-
ably that rendered by Edward Eggleston, who de-
voted a number of weeks to bringing personal
influence to bear upon doubtful Representatives and
stubborn Senators. Dr. Eggleston's humorous cas-
tigation of Senator Beck of Kentucky (who was
inclined to characterize copyright as a " pernicious
monopoly") will be remembered as one of the re-
freshing incidents of the campaign. President Cleve-
land took a keen interest in the copyright measure,
and was not a little disappointed that it did not
become law in time to be classed with the things
accomplished under his administration. I may, I
trust, be pardoned for referring also to the valuable
service rendered (in connection more particularly
with the social opinion of the capital) by the grace-
ful personal influence of Mrs. Cleveland, who was
cordially and intelligently interested in the cause.

The Copyright Association of Boston had been
formed in December, 1887, at the instance of Mr.
Houghton, Mr. Estes, President Eliot, President

CONTEST FOR INTERNATIONAL COPYRIGHT. 49

Walker, and other of the leading citizens of Boston
having to do with literature.

Mr. Estes was made Secretary, and under his active
direction the association promptly made its influence
felt, and succeeded in arousing interest in the question
with the public and among the Congressmen of New
England. The Boston association was represented in
the Conference Committee by Mr. Houghton and Mr.
Estes, and in addition to its local work it took its full
share of the responsibilities of the general campaign.

The Boston association was fortunate enough to
secure the services, as Counsel, of Mr. Samuel J.
Elder, one of the leaders of the Massachusetts Bar,
who had given special attention to the law of copy-
right and was a recognized authority on the subject.
Mr. Elder took an active part in the meetings of the
General Committee in New York at the time when
the preliminary drafts of the act were being worked
over, and he also assisted at several of the consulta-
tions which were held in Washington with Senator
Chace, and his legal experience and thorough knowl-
edge of the requirements to be provided for rendered
his co-operation particularly valuable. These ser-
vices of the Counsel from New England were, like
those of the secretaries and the other working mem-
bers of the Leagues, rendered without compensation
and as a personal contribution to the cause.

A Copyright League was also organized in Chi-
cago, with General McClurg as President, the influ-
ence of which throughout the northwest proved
very valuable. Auxiliary leagues were also formed
in St. Louis, Cincinnati, Minneapolis, Denver, Buf-

50 THE QUESTION OF COPYRIGHT.

falo, Colorado Springs, and other places, and a large
amount of " missionary " work for copyright was
done throughout the country. The Rev. Henry S.
Van Dyke of New York took the lead in the work
of interesting ministers in the moral phase of the
question, and his own address on the " National
Sin of Piracy " was widely circulated. Archdeacon
A. Mackay Smith of New York did some effective
writing in behalf of the bill in the Churchman and
elsewhere, and by means as well of the pulpits as
of the more intelligent of the journals, Interna-
tional Copyright was made a question of the day
throughout the country.

A noteworthy feature in the authors' share of the
campaign was the holding of " authors' readings "
at meetings called for the purpose in New York,
Brooklyn, Washington, Boston, Chicago, and else-
where, at which the leading authors of the country
read selections from their own writings. The " read-
ings " were well attended and served as an effective
advertisement of the copyright cause, while the
admission fees helped to defray some of the mis-
sionary expenses of the campaign. Among the
authors who co-operated in these readings were
Lowell, Curtis, Eggleston, Stedman, Stoddard, Gil-
der, Stockton, Bunner, Cable, Page, Hawthorne,
" Mark Twain," J. W. Riley, " Uncle Remus," Mrs.
Elliott, and others.

Testimony before the Committees of the Senate
and the House was given on behalf of the bill by a
number of representatives of the two leagues, in-
cluding, among the authors, E. C. Stedman, Edward
Eggleston, R. U. Johnson, R. W. Gilder, "Mark

CONTEST FOR INTERNATIONAL COPYRIGHT. 5 I

Twain," and R. R. Bowker, and among the pub-
lishers, W. W. Appleton, H. O. Houghton, Chas.
Scribner, Dana Estes, and G. H. Putnam.

Mr. Kennedy, Mr. Welsh, and other representa-
tives of the Typographical Unions of Boston, New
York, and Philadelphia, were also heard. Argu-
ments in opposition to the bill were presented by
Mr. Gardiner Hubbard, a lawyer of Washington,
who said that he spoke simply for himself, and by
Messrs. Arnoux, Ritch & Woodford, a law firm of
New York, representing certain clients whose names
they were unwilling to disclose. After two years of
service on behalf of these anonymous clients, they
finally stated, under pressure from the Chairman of
the House Committee on the Judiciary, that they
were opposing the bill in the interest of Mr. Ignatius
Kohler of Philadelphia, Mr. Kohler being a Ger-
man publisher of modest business standing. The
committee did not feel that it had been candidly
dealt with by the counsel, and this feeling doubtless
helped to secure their favorable report for the bill.

The first draft of the bill which was submitted to
Senator Chace by the authors and the publishers
provided that foreign books securing American
copyright must be printed in the United States,
but permitted the importation of clichds of the type
or of duplicates of the plates used in printing the
original editions.

It was contended that for certain classes of books
the necessity of doing the type-setting twice in-
stead of dividing its cost between an English and an
American edition would involve a wasteful expense,

52 THE QUESTION OF COPYRIGHT.

the burden of which would have to be shared be-
tween the readers, the authors, and the publishers.
On the other hand, the Typographical Unions in-
sisted that a provision for American type-setting
was essential for their trade interests, and that un-
less such a provision were inserted they would be
under the necessity of opposing the bill. It was
the opinion of Senator Chace, and of other of the
congressional friends of copyright, that the co-
operation of the unions would be very important,
while their influence against the bill in committee
and through their friends in the House would prob-
ably be sufficiently powerful to prevent its passage,
at least at any early date.

It was, therefore, decided by the authors and pub-
lishers of the two leagues to meet the views of the
typographers on this point, and, in utilizing their
co-operation to associate with the Conference Com-
mittee a representative of the National Typographi-
cal Union. Mr. Boselly was the first typograph-
ical representative ; he was later succeeded by Mr.
Dumars, who had also succeeded him as the Presi-
dent of the New York union. The most active and
important work for the bill on behalf of the Typo-
graphical Unions was, however, done by Mr. Ken-
nedy, of the Washington union, whose services in
Washington proved most valuable.

The negotiations with the Unions were carried
on in Philadelphia by Mr. C. Febiger, and in New
York by Mr. Eggleston and Mr. Putnam.

The National Association of Typothetse, or em-
ploying printers, was represented in the Conference

CONTEST FOR INTERNATIONAL COPYRIGHT. 53

Committee by Mr. Theodore L. De Vinne, through
whose influence and arguments, at two of the an-
nual meetings of the Typothetae, resolutions were
secured in support of the bill.

The second bill introduced by Senator Chace con-
tained the clause, drafted at the instance of the
typographers, providing that the foreign book se-
curing American copyright must be printed from
type set within the United States. It also provided
for the prohibition of the importation of all foreign
editions of works copyrighted in this country.

For the wording of these provisions of the bill
Henry C. Lea of Philadelphia was chiefly responsi-
ble. Mr. Lea, himself an author of distinction, had
had long experience as a publisher. He was a
strong believer in the principle of international
copyright, but he was equally clear in his convic-
tion that it would be contrary to the interests of
the community to permit any injury to the business
of the American book-making trades, or to transfer
to English publishers any control of the American
book-market. He contended, therefore, that the
total American manufacture of the books copy-
righted must be made an essential condition of the
concession of American copyright to foreign au-
thors. His contention, backed up by the printers,
was finally accepted by the authors, and the "type-
setting " and " non-importation " clauses were in-
serted in the bill.

The Chace bill, thus modified, was introduced in
the House March 19, 1888, byW. C. P. Breckinridge
of Kentucky, and referred to the Judiciary Com-

54 THE QUESTION OF COPYRIGHT.

mittee, and by the committee favorably reported to
the House April 21.

On April 23 the bill was called up for considera-
tion in the Senate, and after a discussion which
took portions of several days, it was passed May
9, 1888, by a vote of 34 to 10.

The leaders in its support were Senators Chace,
Hawley, Hoar, Frye, and Piatt, while its most
active opponents were Senators Beck of Kentucky,
Daniels of Virginia, George of Mississippi, and Rea-
gan of Texas.

In the House the bill was not in as favorable a
position on the calendar, while the long discussion
of tariff questions in connection with the Mills Bill
had seriously blocked the progress of business. Not-
withstanding, therefore, the prestige of the success
of the measure in the Senate, it did not prove prac-
ticable during the session to bring it to a vote in the
House. The difficulty may, also, have been some-
what increased by the fact that the bill had origi-
nated in the Senate, which was strongly Republican,
while the conduct of business in the House was in
the hands of a Democratic majority.

The campaign for the Copyright Bill in the Fifty-
first Congress was initiated at a breakfast given in
New York on the 7th of December, 1889, by advo-
cates of International Copyright, to the Comte de
K£ratry, in compliment to himself and to the
French literary and artistic associations of which
he was the representative.

In the Fifty-first Congress the bill was promptly
introduced in the Senate December 4, 1889, by Sen-

CONTEST FOR INTERNATIONAL COPYRIGHT. 55

ator O. H. Piatt of Connecticut (Senator Chace
having in the meantime resigned his seat), and was
again referred to the Committee on Patents. A
duplicate of the bill was, on January 6, 1890, intro-
duced in the House by W. C. P. Breckinridge of
Kentucky, its old-time supporter, and found its way
in regular course to the Committee on the Judiciary,
From this committee it was favorably reported on
January 21, 1890. For the purpose of securing a
double chance for the bill, Mr. Butterworth of Ohio,
an earnest friend of copyright, also introduced the
bill, and had it referred to the Committee on Pat-
ents, of which he was chairman. The result showed
that if it had not been for this piece of foresight
the bill could hardly have succeeded in the Fifty-
first Congress. In this Congress the majority in the
House, as well as in the Senate, was Republican,
and it was, therefore, essential to place the bill
under Republican leadership.

Fortunately, in connection with this necessity,
two active friends had been found for the measure
on the Republican side of the House — Mr. G. E.
Adams of Chicago, and Mr. W. E. Simonds of New
Haven.

The former presented to the House on the 15th
of February, a forcible report in favor of the bill,
together with a new printing of the bill itself, giv-
ing the full wording of the sections of the Revised
Statutes, as they would appear when the new pro-
visions had been inserted.

On February 18, Mr. Simonds submitted a fav-
orable report from the Committee on Patents,

56 THE QUESTION OF COPYRIGHT.

accompanied by a bill which was a duplicate of that
of Mr. Adams, with the addition, however, of what is
known as the Reciprocity clause. On February 21,
Senator Piatt obtained leave to substitute the text
of the Adams bill for his Senate bill.

On the 1st of May, the Adams Judiciary Com-
mittee Bill was reached on the calendar of the
House, and after a vigorous discussion, extending
over two days, the third reading was refused by a
vote of 126 to 98. The opposing vote was largely
Democratic, but it was led by a Republican, Judge
Lewis E. Payson of Illinois, while on the Demo-
cratic side Mr. Breckinridge of Kentucky was, as
heretofore, active in support of the bill ; and he
was ably assisted on his side of the House by W.
L. Wilson of West Virginia, Ashbel P. Fitch of
New York, and others, and among the Republicans,
by Mr. Lodge, Mr. Stewart of Vermont, Mr. Si-
monds, and others. Not discouraged by this adverse
vote, Mr. Simonds, having added a reciprocity
clause to his bill, again introduced it on the 16th
of May, and had it referred to the Committee on
Patents, and on June 10 it was again reported from
that committee. The report, which was written by
Mr. Simonds, was most comprehensive and forcible,
and it has been included in this volume.

Early in the second session, Mr. Simonds suc-
ceeded in getting a day fixed for his bill, and on
December 3 the bill was passed by a vote of 139
to 96.

The result was partly due to skilful parliamentary
management, and to the personal influence brought

CONTEST FOR INTERNATIONAL COPYRIGHT. $?

to bear upon more or less indifferent members and
upon members who had previously misapprehended
the subject, by Representatives who had made a
careful study of it, like Mr. Lodge of Massachu-
setts, Mr. Simonds, and others.

A good share of the credit for the noteworthy
change in the opinion of the House may, however,
justly be claimed for the active " missionary " work
which had been kept up by the league during the
summer throughout the country, and especially in
the constituencies of doubtful members, by means
of the distribution of tracts and arguments, the
preparation of material for the leaders of local
newspapers, and also by reaching the personal cor-
respondents of authors and the friends of authors.

The higher grade journals throughout the country
gave a hearty support to the bill, and the aid of the
Times, Tribune, and Post, of New York, the Sun of
Baltimore, the Times and Ledger of Philadelphia,
and the Commercial of Cincinnati, was especially
valuable. The members of the book trade were kept
thoroughly informed and educated on the subject by
an able series of papers in the Publishers' Weekly.

The bill, as passed in the House, was considered
in the Senate in a discussion extending over portions
of six days.

A similar measure (the Chace Bill) having before
received the approval of a majority of the Senators,
it was at first thought that the success of this bill in
the Senate was assured. On the strength of the
record of the Chace Bill, the secretary of the Joint
Committee obtained for the bill the second place on

58 THE QUESTION OF COPYRIGHT.

the calendar of the prescribed business for the ses-
sion, "without which advantage it would probably
not have been reached. New obstacles had, how-
ever, developed, including the political prejudices
engendered by the preceding election, and the fight
of two years before had to be fought over again on
new lines, although with the great aid of the import-
ant work previously accomplished.

Certain of the senators who had previously voted
for the bill and who had expressed themselves as
friendly to its principles, found themselves now inter-
ested in proposing various amendments, some of
which were inconsistent with the main purpose and
with the existing provisions of the bill, and all of which
were promptly taken advantage of by the opponents
as affording opportunities for killing the bill by delays.

The amendment which brought out the largest
amount of discussion was that offered by Senator
Sherman, which has already been referred to in this
volume (in the analysis immediately following the
text of the Act).

This amendment authorized the importation of
foreign editions of books by foreign authors secur-
ing American copyright. The supporters of the
bill contended that such an authorization would be
incompatible with the manufacturing provisions of
the bill, which made American manufacture of all the
editions issued in this country an essential condition
of American copyright. It became apparent after
the first conferences that the House would not recede
from this view, and the amendment, after being
twice passed by the Senate, was finally abandoned.

CONTEST FOR INTERNATIONAL COPYRIGHT. 59

A modification was, however, finally made in the
Conference Committee in the provision of the bill
permitting the importation of copies of authorized
foreign editions of works copyrighted in the United
States, in quantities not to exceed two copies in any
one invoice. This provision, as originally worded,
made the written consent of the owner of the copy-
right a condition of the importation of these two
copies. The Conference Committee eliminated the
consent of the author. This concession undoubtedly
helped to secure the final vote in the Senate, accept-
ing the bill without the Sherman amendment, as it re-
moved the objection that readers preferring European
editions ought not to be prevented from securing these
(in duly authorized issues) for their own libraries.

A fourth amendment, to the consideration of which
a good deal of time was also given in the Senate, was
presented by Senator Frye, in the interest of Ameri-
can lithographers and chromo-manufacturers.

As first worded, it provided that foreign artists
and designers could secure American copyright for
their art productions or designs only when the re-
productions of these had been manufactured in the
United States. This Frye amendment was vigor-
ously opposed by the artists throughout the country
and by all who were interested in having justice
done to foreign artists, and petitions against it came
in from New York, Boston, Philadelphia, Chicago,
and elsewhere. The friends of the bill pointed out
that it would in the larger number of cases be ab-
solutely impracticable for foreign artists to arrange
to have the reproductions of their works of art

60 THE QUESTION OF COPYRIGHT.

manufactured in the United States, as this would
necessitate the importation of the original — an im-
portation entailing, in addition to other serious dis-
advantages, outlays for freight and duty.

The amendment would, therefore, have the result
of nullifying the American copyright of foreign art-
ists, which it had been the intention of the bill to
secure. This Frye amendment passed the Senate on
the 17th of February by a vote of 41 to 24. The
secretary of the Joint Committee, who had spent six
weeks of the session in Washington, in active canvass
for the bill, took immediate steps to organize an op-
position to this amendment, both in Congress and
throughout the country.

As a result of the protests that came in to the Sen-
ate from art associations, artists, art students, from
educational centres, and from many of the leading
journals, the action of the Senate was on the 19th of
February, reversed by a vote of 33 to 31. Among
those who were active in bringing public opinion to
bear upon Congress in this matter were R. W. Gilder,
Dana Estes, and G. H. Putnam. In its final form
the bill provided for the American manufacture only
of such art reproductions as took the form of litho-
graphs, photographs, and chromos ; and left the
foreign artist, therefore, in a position to secure, ir-
respective of place of manufacture, American copy-
right for reproductions in the form of engravings (on
steel or on copper) and photogravures.

An amendment proposed by Senator Ingalls, and
finally accepted, with some modifications, by the
Conference Committee, permitted the importation

CONTEST FOR INTERNATIONAL COPYRIGHT. 6l

of foreign newspapers and magazines containing
material that had been copyrighted in the United
States, provided the publication in such periodicals
had been authorized by the author.

The most active supporters of the bill in the Senate
were Senator Piatt, whose patience, parliamentary
skill, and tact were unwearying, and Senator Hoar,
Evarts, Hawley, Wolcott, Aldrich, and Dixon.

The most persistent and unwearying opponent
was Senator Daniels of Virginia, who was supported
in his opposition by Senators Sherman, Hale, Pasco,
Vance, Reagan, and Plumb.

Mr. Daniels took up a considerable portion of the
time allotted to the bill during the several days of
the debate, and at one time it looked as if he would
succeed, in connection with the crowded condition
of the calendar, in killing it by " talking out the
time." While criticising severely the protectionist
provision of the bill, he voted for the Frye amend-
ment, which constituted an important addition to
these provisions, and he voted for every amendment
which seemed likely to make delays. The bill, with
the several Senate amendments, passed the Senate
on the 19th of February, by the decisive vote of 36
to 14, 38 members being absent.

On the 1st of March the House decided, by a
vote of 128 to 64, not to concur with the Senate
amendments. The friends of the measure voted
with the majority, having already assured them-
selves that it would not be practicable to pass the
bill in the House with the amendments.

On the 3d of March Mr. Simonds reported to the

62 THE QUESTION OF COPYRIGHT.

House that the Conference Report had agreed upon
certain of the amendments, with some modifications,
but had disagreed upon the Sherman amendment.
He secured, by a vote of 139 to 90, authority for
another conference. On the evening of the same
day the Senate refused, by a vote of 33 to 28, to
recede from the Sherman amendment, but also
ordered another conference.

The result of this second conference, which took
place after one o'clock on the night of the 3d, was
a report to the Senate by a majority of its com-
mittee, in favor of receding from the Sherman
amendment. The change in the opinion of the
Senate Committee had been brought about by a
change in the position of Senator Hiscock, who had
become convinced that if an International Copyright
Law was to be enacted by the Fifty-first Congress,
the Sherman amendment must be abandoned. His
associates on the committee were Senator Piatt, who
had from the outset opposed the amendment, and
Senator Gray of Delaware, who favored it. The report
of the second Conference Committee was accepted
by the House, by a vote of 127 to 82, the House having
accepted from the Senate the Frye amendment (as
modified), the Ingalls amendment, and an amendment
proposed by Senator Edmunds, giving to the Presi-
dent, in place of the Attorney-General, the responsi-
bility of declaring when reciprocity had been arranged
for with any foreign state, and the provisions of the
act had, therefore, come into force with such state.

The successful steering of the bill through the
House in the several votes required during the

CONTEST FOR INTERNATIONAL COPYRIGHT. 63

night of the 3d of March was largely the work of
Henry Cabot Lodge, and was not a little furthered
by the friendly co-operation of Speaker Reed.

At half-past two in the morning of March 4 the
Senate assented to the final report of its Conference
Committee, by a vote of 27 to 19 (with 40 senators
absent), and the bill was passed.

A motion to reconsider was, however, immediately
made by Mr. Pasco of Florida, and, although the
bill had in the meantime been signed by the Vice-
President, it was not permitted to be sent to the
President until a quorum could be secured to vote
upon Mr. Pasco's motion. This was accomplished
at half-past ten in the morning of March 4, within
an hour of the close of the Fifty-first Congress,
when the motion to reconsider was defeated by the
vote of 29 to 21, with 36 absentees.

The greater number of the Senators had been up
through a large part of the night, and the friends
of the bill were rallied to resist this last assault only
by means of an urgent " whip " delivered in person
by Mr. Johnson, Mr. Appleton, and Mr. Scribner,
who, acting on behalf of the Copyright Leagues,
had, in company with Mr. Piatt, Mr. Lodge, and
other friends of the bill, kept a continuous vigil
over its varying fortunes during the long hours of
the night session.

The bill was promptly signed by the President,
and thus, after a struggle extending over fifty-three
years, the United States put itself on record as ac-
cepting the principle of International Copyright.

New York, April 2, 1S91.

V.
THE HAWLEY BILL.

INTRODUCED into the Senate, January, 1885, by
Senator J. R. Haw ley of Connecticut, but never
reported from the Committee on Patents to which
it was referred.

Be it enacted, etc.

I. The citizens of foreign states and countries, of which the laws,
treaties, or conventions confer or shall hereafter confer upon citi-
zens of the United States rights of copyright equal to those accorded
to their own citizens, shall have in the United States rights of copy-
right equal to those enjoyed by citizens of the United States.

II. This act shall not apply to any book or other subject of copy-
right published before the date hereof.

III. The laws now in force in regard to copyright shall be appli-
cable to the copyright hereby created, except so far as the said laws
are hereinafter amended or repealed.

IV. Section 4971 of the Revised Statutes of the United States is
hereby repealed. Section 4954 is amended by striking out the words
"and a citizen of the United States or resident therein." Section
4967 is amended by striking out the words " if such author or pro-
prietor is a citizen of the United States or resident therein."

V. The proclamation of the President of the United States that
such equality of rights exists in any country shall be conclusive proof
of such equality.

VI.

AN ANALYSIS OF A SCHEME FOR INTER-
NATIONAL COPYRIGHT, SUGGESTED
BY MR. R. PEARSALL-SMITH. .

Reprinted, with some additions, from the New York Evening Post.

PUBLIC attention has recently been directed to a
new scheme for international copyright which has
been presented in the Nineteenth Century by Mr. R.
Pearsall-Smith, of Philadelphia, under the title of
" An Olive Branch from America." Mr. Smith pro-
poses:

(i) That any American publisher shall be at lib-
erty to print editions of the works of a foreign
author under the condition of paying to such author
a royalty of ten per cent, of the retail price.

(2) That this royalty shall be paid by the pur-
chase from the author, in advance of the publication
of the American edition, of stamps representing the
above rate, as many stamps being bought as there
are copies printed in the edition, and each copy of
the book that is placed in the market by the pub-
lisher bearing one of these stamps conspicuously
affixed.

The plan contains some further suggestions as to
the penalties for the sale or purchase of an un-
stamped book, but the above are the essential pro-
visions, and the only ones at present calling for con-
sideration.
5

66 THE QUESTION OF COPYRIGHT.

Mr. Smith does not speak as an author, and it is
evident that he has no adequate knowledge of the
conditions under which is carried on the business of
publishing and distributing books. It seems desir-
able, however, to give present consideration to the
practicability of his suggestions, as well because
he has seen fit to present them to the British pub-
lic with a certain assumption of speaking for the
American community, and has secured for them the
quasi approval of certain English authors, such as
Tennyson, Gladstone, Matthew Arnold and others,
as because at this time, when those who have for
many years been working on behalf of international
copyright are again hopeful of securing favorable
attention from Congress, it is important that public
and legislative opinion should not be confused with
crude and visionary schemes.

The question of international or of domestic
copyright is, it is claimed, and with justice, in the
main a matter between the authors and the public,
and in shaping legislation the rights of authors and
the interests of the public are the essential things to
be considered. It is in order, nevertheless, for pub-
lishers to claim a hearing in connection with the
provisions of copyright legislation, not because the
interests of their small group ought to be in any
degree offset against those of the community, but
because their experience gives them the knowledge
(possessed by no other class) of the conditions under
which the proposed laws must do their work, and
legislation put into shape without the benefit of this
technical knowledge may easily fail of its purpose as

THE PEARSALL-SMITH SCHEME. 6y

well in protecting the authors as in serving the real
interests of the community.

The measure of permitting a foreign book to be
reprinted by all dealers who will contract to pay the
author a specified royalty, is, of course, not original
with Mr. Smith. It was suggested in 1872 by John
P. Morton, John Elderkin, and others, in connection
with the attempt then made to secure international
copyright. In 1877, at tne time tne British Copy-
right Commission was engaged in revising the act
for domestic copyright, the proposal was made by
Mr. Farrer (now Sir Thomas Farrer) that a similar
provision should apply to domestic publishing, and
that for the purpose of securing cheap books for the
people, all dealers should have the privilege of pub-
lishing editions of an author's works, who would
agree to pay to the author a copyright, to be fixed
by law, which would secure him " a fair profit for
his labor." Herbert Spencer, in his testimony
before the Commission, objected that :

(1) This would be a direct interference with the
laws of trade under which the author, like any pro-
ducer, had the right to select his own agents and
make his own bargains.

(2) No legislature was competent to determine
what was " a fair rate of profit for an author."

(3) No average royalty could be determined which
could give a fair recompense for the different
amounts and kinds of labor given to the production
of different classes of books.

(4) If the legislature has the right to fix the profit
of the author, it has an equal right to determine

63 THE QUESTION OF COPYRIGHT.

that of his associate in the publication, the pub-
lisher ; and if of the publisher, then also of the
printer, binder, and paper-maker, who all have an
interest in the undertaking. Such a right of control
would apply with equal force to manufacturers of
other articles of importance to the community, and
would not be in accordance with the present theo-
ries of the proper functions of government.

(5) If books are to be cheapened by such a meas-
ure, it must be at the expense of some portion of
the profits now going to the authors and publishers;
the assumption is that book producers and distribu-
ters do not understand their business, but require
to be instructed by the state how to carry it on,
and that the publishing business alone needs to have
its returns regulated by law.

(6) The prices of the best books would in many
cases, instead of being lessened, be higher than at
present, because the publishers would require to
insure themselves against the risk of rival editions,
and because they would make their first editions
smaller, and the first cost would have to be divided
among a less number of copies. Such reductions of
prices as would be made would be on the flimsier
and more popular literature, and even on this could
not be lasting.

(7) For enterprises of the most lasting importance
to the public, the publishers require to be assured
of returns from the largest market possible, and
without such security, enterprises of this character
could not be undertaken at all.

(8) Open competition of this kind would in the

THE PEARSALL-SMITH SCHEME. 69

end result in crushing out the smaller publishers,
and Jn concentrating the business in the hands of a
few houses whose purses had been long enough to
carry through the long and unprofitable contests
that would certainly be the first effect of such legis-
lation.

Every one of these objections adduced against
the plan of open publishing for domestic works,
applies with equal force to the plan of legalizing
such open republishing for foreign works, and there
are some further considerations which Mr. Spencer
did not mention.

A British author could hardly obtain much satis-
faction from an arrangement which, while prevent-
in^ him from placing his American business in the
hands of a publishing house selected by himself,
and of whose responsibility he could assure himself,
threw open the use of his property to any dealers
who might choose to scramble for it. The author
could exercise no control over the style, shape,
accuracy, or completeness of his American edition,
the character of the illustrations contained in his
books, or the appropriateness of the association
that might be given to his writings (in series or in
volumes) with the works of other writers. If the
author were tenacious as to the collection of the
royalties to which he would become entitled, he
would in many cases be able to enforce his claims
(even under the proposed " stamp act ") only
through troublesome supervision and probably
through vexatious lawsuits, the expenses of which
might easily exceed his receipts. The benefit to

JO THE QUESTION OF COPYRIGHT.

the public would be no more apparent. Any gain
in the cheapness of the editions produced would be
more than offset by their unsatisfactorincss. They
would in the majority of cases be untrustworthy as
to accuracy or completeness, and be hastily and
flimsily manufactured. Scientific works could, as
Mr. Huxley points out, have their value materially
impaired by presenting illustrations which were
only travesties of the author's original designs, and
such inadequate and misleading illustrations would
assuredly find place in the competing editions of
the more " enterprising " reprinters.

A certain class of British authors would have the
further ground for objection that the provision re-
quiring payment in advance of copyright on the
first edition would not infrequently have the effect
of preventing any American edition of their books
from being undertaken. There is always considera-
ble risk in reprinting a first book by a foreign au-
thor, and the writers of first books are as a rule
sufficiently desirous to bring their productions to
the attention of the American public to be very
willing to permit the payment of compensation to
the author to be left contingent upon there being
any profits from the sales.

A great many ventures, desirable in themselves,
and that would be of service to the public, no pub-
lisher could, under such an arrangement, afford to
undertake at all, as, if they proved successful, un-
scrupulous neighbors would, through rival editions,
reap the benefit of his initiative, his literary judg-
ment, and his advertising. For works of this class,

THE PEARSALL-SMITH SCHEME. J I

reprints of which were not ventured upon, Ameri-
can buyers would of course be obliged to depend
upon the more costly foreign editions.

It is also the case that a certain class of publica-
tions, of which the " International Science Series"
and the " Story of the Nations Series " are exam-
ples, are the undertakings of the publisher. They
are in a sense the creation of the publisher, as they
would not have come into existence at all except
for the publisher's initiative and planning ; and the
volumes in them are usually written at the pub-
lisher's suggestion. The commercial value of such
a series depends in part upon the value of the indi-
vidual volumes, but largely, also, upon the planning
and editorial management of the undertaking as a
whole ; and a considerable part of the sale of any
one of these volumes is to be credited to its con
nection with the series. In any such series, cer-
tain of the volumes, which are necessary and im-
portant to give completeness to the general plan,
are, from the nature of their special subjects, less
likely than the others to secure remunerative sale ;
and any deficiencies accruing from the publication
of these have to be made up from the sale of the
more popular volumes.

Under any "open publishing" scheme, however,
the competing " reprinters" would pick out for their
competing editions the more salable books, securing
on these the advantage of the initiative, the editorial
skill, and the advertising of the original publisher,
and, in part at least, also, of the prestige of the
series. The curtailing or destroying altogether of

72 THE QUESTION OF COPYRIGHT.

the profits on these more popular volumes would, of
course, lessen to a corresponding extent the ability
of the original publisher to carry to completeness
the plan of his series by including in it subjects
which, however important for certain readers or
certain students, were not calculated to secure a
remunerative sale. Upon this class of readers the
plan of "open publishing" would therefore bring
loss and deprivation as surely as upon the publishers.

Responsible publishers, who fulfill strictly their
engagements with authors, and whose aim it is to
present effectively to the public complete and de-
cently printed books, must naturally object to a
measure which would put the business of reprint-
ing on the basis of a cut-throat competition, and
which would give such material advantages to the
more unscrupulous dealers who were oblivious of
their obligations either to the authors or the public.

I take the position that there is an impertinence
in the suggestion of the government's undertaking
to decide either for the author at what rate he
should be paid, or for the publisher by what ma-
chinery the payments should be made. It is also
absurd to assume that it would be either proper or
practicable to make the rate of payment the same
for all grades of authors and for all classes of books ;
while there is no more propriety in having the gov-
ernment supervise the business of the publisher by
such a " bell-punch " device, than there would be in
instituting similar government supervision for any
other classes of business in which trust interests are
involved.

THE PEARSALL-SMITH SCHEME. H

With reference to this plan for legalized open re-
printing, the experienced publisher, W. H. Apple-
ton, wrote in 1872 :

"The first demand of property is for security, . . . and to
publish a book in any real sense — that is, not merely to print it, but
to make it well and widely known, requires much effort and larger
expenditure, and these will not be invested in a property which is
liable to be destroyed at any moment. Legal protection would put
an end to evil practices, make property secure, business more legiti-
mate, and give a new vigor to enterprise ; nor can a policy which is
unjust to the author, and works viciously in the book-trade be the
best for the public. The publisher can neither afford to make the
book so thoroughly known, nor can he put it at so low a price as if
he could count upon a permanent and undisturbed control of its
sales. Many valuable books are not reprinted at all, and therefore are
to be had only at English prices, for the same reason, that publishers
are cautious about risking their capital in unprotected property."

The arguments in favor of this plan of legalizing
open reprinting of foreign works would apply of
course with equal reasonableness to the legalizing
of open reprinting of domestic books, and to the
depriving of American, as well as foreign, writers
of their rights of contract, and of the control of
the property interests in their productions. Such
a system would make of home copyright, and of
any copyright, a farce and an absurdity.

None of the objections above presented could, of
course, be obviated in any way by the only new
suggestion in Mr. Smith's scheme, namely, the col-
lection of the author's royalties by means of stamps,
an idea which has possibly been suggested by the
use of stamps at different times by the government
to collect the taxes on beer sold in barrels, and on
patent medicines sold in bottles.

74 THE QUESTION OF COPYRIGHT.

The supervision of the manufacture and sale of
these articles is, however, a simple matter compared
with what would be necessary for the control of the
manufacture and sale of books; but for the proper
care of the government interests a large force of
expensive inspectors has always been required. I
doubt whether the probable return to foreign au-
thors from their American sales would warrant
them in the expenditure required to keep up a
force of officials adequate to supervise bookselling
throughout the continent.

In each large brewery, for instance, a revenue in-
spector is always stationed to keep a check on the
numbers of barrels produced and on the proper use
of the excise stamps for these. Under Mr. Smith's
scheme, it would be in order for " literature inspect-
ors " (paid by the foreign authors) to be stationed
in the office of each American publisher to check
off his reprints.

Responsible publishers would assuredly be averse
to investing any considerable sums in the purchase
from abroad of supplies of the proposed stamps
which could so easily be counterfeited by irrespon-
sible dealers as well in Canada as in the States.
The publication or the reprinting of any book is
more or less of a lottery (instead of being, as is so
often delusively calculated, an undertaking in which
the only problem is the division of the profits).
Under this scheme the publisher would be obliged
to add to the manufacturing outlay at risk, an in-
vestment in an advance purchase of as many stamps
as he believed would be required for the first edition.

THE PEARSALL-SMITH SCHEME. 75

If he overestimated the sales it would often not be
an easy matter to return the surplus stamps and get
back the money paid for them, while if the im-
mediate demand exceeded the estimate, it could
easily happen that sales would be delayed and lost
because of the necessity of waiting for the importa-
tion of a further supply of the stamps.

It is, of course, also the case that under the con-
ditions of bookselling in this country, books are in
many cases sent out to dealers with the privilege of
returning, once or twice a year, unsold copies. The
getting back of these copies from points between
Oregon and Texas is a business that often requires
months, and the adjustment of the credit for stamps
on these returned copies, and on the copies given
to the press, or the copies (of scientific and educa-
tional works) given to instructors, would constitute
another complication for the bothered publishers.

American authors could justly object to this
scheme of open reprinting, first, because if offset
with a reciprocal measure of " protection " for Ameri-
can works abroad, it would expose them to all the
disadvantages above set forth of lack of power to
select their agents, lack of control of the printing
and publishing of their books, expense and difficulty
of enforcing their collections, and certainty of loss
through the use of forged stamps ; and, second,
because the business of reprinting in this country
would be left in the present condition of " scramble "
and cut-throat competition, and the difficulty in the
way of securing favorable consideration or remuner-
ative sale for American books (particularly in light

y6 THE QUESTION OF COPYRIGHT.

literature), while the market is full of " cheap and
nasty " reprints, more or less incomplete, of similar
foreign works, would be practically as great as at
present.

International copyright is demanded, as it seems
almost a truism to say, by every consideration of
national honor, and of the highest national advan-
tage, and it is assuredly full time that the United
States of America placed itself on as high a plane of
international ethics as that now reached by the
African States of Liberia and Tunis, which have re-
cently united in the Copyright Convention formu-
lated at Berne.

If, however, Congress will bring about the
arrangement for the necessary recognition and
protection of literary property, the authors and
publishers can safely be left to adjust between
themselves all business details, such as rates of
compensation and methods of payment, which
details are properly matters of private contract.

G. H. P.

New York, Nov. 21st, 1877.

VII.

INTERNATIONAL COPYRIGHT.

Report of the Hon. W. E. Simonds, of Connecticut, from the
House Committee on Patents, June 10, 1890.

Mr. Simonds, from the Committee on Patents,
submitted the following report (to accompany H.
R. 10881):

The Committee on Patents, to whom was referred
the bill (H. R. 10254) "To amend title sixty, chap-
ter three, of the Revised Statutes of the United
States relating to copyright," respectfully report
that they have had the same under consideration.
They recommend that said bill be tabled and that
the accompanying substitute bill be passed. In
this connection they submit comments as follows:

THE PROPOSITION OF THE BILL.

The proposition of the bill is simply to permit
foreigners to take American copyright on the same
basis as American citizens, in three cases : first,
when the nation of the foreigner permits copyright
to American citizens on substantially the same basis
as its own citizens ; second, when the nation of the
foreigner gives to American citizens copyright priv-
ileges similar to those provided for in this bill ;

?$ THE QUESTION OF COPYRIGHT.

third, when the nation of the foreigner is a party to
an international agreement providing for reciprocity
in copyright, by the terms of which agreement the
United States can become a party thereto at its
pleasure.

A subsidiary but important proposition of the bill
is that all books copyrighted under the proposed
act shall be printed from type set within the United
States, or from plates made therefrom. The fol-
lowing is from the testimony of J. L. Kennedy,
given before the House Judiciary Committee, Jan-
uary 30, 1890, in behalf of the International Typo-
graphical Union :

Mr. Oates. "Why do the printers favor this bill ?

Mr. Kennedy. For several reasons. The first and principal
reason is the selfish one. How rare is the human action that has
not selfishness for its motive force ! Its effect as a law will be given
to greatly stimulate book printing in the United States. A vast
amount of printing that naturally belongs here (because it is executed
principally for this market), and now done on the other side, will
come home to us. Indeed, it has been conspicuously stated in the
London Times that if this bill becomes a law the literary and book
publishing centre of the English world will move westward from
London and take up its abode in the city of New York. That
would be a spectacle which every patriotic American might con-
template with complacency and pride.

The Englishman who writes books for the money he can get out
of them, as well as the fame — and I think it fair to presume that the
great majority of authors are actuated by both of those motives —
will recognize that here is the richest market, and he will not think
it a hardship to comply with the provisions of this proposed law in
view of the substantial benefit it is to him, and the printers do not
consider it a hardship to require of him that he shall leave upon our
shores so much of his profits at least as will pay for his printing.
The American author who goes abroad in search of a cheaper pub-
lishing market, sending his shell-plates over here to be mounted and

INTERNATIONAL COPYRIGHT. 79

to have his presswork done, or else sending the printed sheets home
to be bound here, thus evading the heavier duty on bound books,
will also be compelled to patronize home industry for his mechanical
work. In short, it is not difficult for printers to see that such a law
will confer inestimable benefits upon their own and allied trades.

THE TERM OF COPYRIGHT.

Under the existing law of the United States
copyright is granted for twenty-eight years, with
the right of extension for fourteen more ; in all,
forty-two years. The bill proposes no change in
that respect. The term of copyright in other coun-
tries is as follows:

Mexico, in perpetuity.

Guatemala, in perpetuity.

Venezuela, in perpetuity.

Colombia, author's life and eighty years after.

Spain, author's life and eighty years after.

Belgium, author's life and fifty years after.

Ecuador, author's life and fifty years after.

Norway, author's life and fifty years after.

Peru, author's life and fifty years after.

Russia, author's life and fifty years after.

Tunis, author's life and fifty years after.

Italy, author's life and forty years after ; to be eighty years in any
event. (See later chapter in this volume.)

France, author's life and fifty years after.

Germany, author's life and thirty years after.

Austria, author's life and thirty years after.

Switzerland, author's life and thirty years after.

Hayti, author's life, widow's life, children's lives, and twenty
years after.

Brazil, author's life and ten yeais after.

Sweden, author's life and ten years after.

Roumania, author's life and ten years after.

Great Britain, author's life and seven years after ; to be forty-two
years in any event.

8o THE QUESTION OF COPYRIGHT.

Japan, author's life and five years after.

South Africa, author's life ; fifty years in any event.

Bolivia, author's life.

Denmark, fifty years.

Holland, fifty years.

The verdict of the world declares for a longer
term of copyright than that granted by the United
States of America. (La Propriety Littdraire et Ar-
tistique, Paris, 1889.)

LIBERALITY TO FOREIGNERS.

Without reference to international agreements,
every one of the twenty-six countries above named
permits foreigners to take copyright on the same
basis as its own citizens except Great Britain. That
country permits foreigners to take copyright on the
same basis as its own citizens, provided the for-
eigner is at the time of publication anywhere within
the British dominions, which expression includes
British colonies and possessions of every sort.

An alien friend temporarily residing in the British dominions, and
consequently owing a temporary allegiance, is entitled to copyright
in any work which he publishes here whilst so residing, however
short his period of residence may be. (Short's Law of Copyright,
p. 12.)

By Acts of Parliament the queen is empowered to
provide for copyright of an international character
as to any nation which will reciprocate. From con-
ditions herein pointed out it is clear that the queen
is thus empowered solely with reference to hoped-
for relations with the United States of America.

The United States alone refuses copyright to for-
eigners, and, alone among the nations of the earth,

INTERNATIONAL COPYRIGHT. 8 1

refuses reciprocity in copyright. {La Propria
Litter aire et Artistiqtte, before cited.)

INTERNATIONAL COPYRIGHT AGREEMENTS.

First and last there have been signed about a
hundred international agreements providing for rec-
iprocity in copyright, the general nature of which is
illustrated by the following quotation of Article II.
of the agreement made at the Berne International
Copyright Convention of September 9, 1886:

Authors within the jurisdiction of one of the countries of this
Union, or their heirs, shall enjoy in the other countries for their
works, whether they are or are not published in one of these coun-
tries, the rights which the respective laws of these countries now
accord, or shall subsequently accord, to their own countrymen.

The international copyright agreements of France
are: With Holland, July 25, 1840 ; Portugal, April
12, 1 85 1 ; Great Britain, November 3, 185 1 ; Bel-
gium, August 22, 1852 ; Spain, November 15, 1853;
Luxemburg, July 6, 1856; Russia, April 6, 1861 ;
Italy, June 29, 1862; Prussia, August 2, 1862;
Switzerland, June 30, 1864; Hanseatic Cities,
March 4, 1865 ; Bavaria, March 24, 1865 ; Frank-
fort-on-the-Main, April 18, 1865 ; Wurtemburg,
April 24, 1865 ; Baden, May 12, 1865 ; Saxony,
May 26, 186$ ; Mecklenburg-Schwerin, June 9,
1865 ; Hesse, June 14, 1865 ; Hanover, July 19,
1865; Monaco, November 9, 1865; Luxemburg,
December 16, 1865; Great Britain, August II,
1865; Salvador, June 2, 1880; German Empire,
April 19, 1883; Sweden and Norway, February 15,
1884; Italy, July 9, 1884; Portugal, July II, 1886;

82 THE QUESTION OF COPYRIGHT.

Mexico, November 27, 1886 ; Bolivia, September 8,
1887.

The following named countries have signed inter-
national copyright agreements in number as fol-
lows : German Empire, six (the German states had
signed many prior to 1871, when the empire was
created) ; Belgium, six ; Bolivia, six ; Ecuador, one ;
Spain, seven ; Great Britain, nineteen ; Italy, ten ;
Luxemburg, two ; Mexico, one ; Monaco, one ;
Holland, three; Portugal, four; Russia, two; Sal-
vador, one ; Sweden and Norway, two ; Switzer-
land, five.

The agreement made at the Berne Convention of
September 9, 1886, was signed by Great Britain,
France, Germany, Spain, Holland, Italy, Switzer-
land, Hayti, Liberia, and Tunis. January 11, 1889,
the following seven South American Governments
signed the draft of the agreement made at the
Montevideo International Copyright Convention :
the Argentine Republic, Bolivia, Brazil, Chili, Para-
guay, Peru, and Uruguay. The United States of
America, standing substantially alone in that regard
among the civilized nations of the earth, has never
entered into an international agreement for the pro-
tection of copyright.

We were represented at the Berne Convention of
1886 by the Hon. Boyd Winchester, who reported
strongly in favor of the United States giving its
adhesion to the Berne agreement ; but our Govern-
ment has refrained from doing so, for the express
reason that Congress is dealing with the subject
from time to time. The transactions in this regard

INTERNATIONAL COPYRIGHT. 83

are given in Executive Document No. 354 (Forty-
ninth Congress, first session), and Executive Docu-
ment No. 37 (Forty-ninth Congress, second session).
The recent International American Congress, held
in the city of Washington, reported the following
resolution:

Whereas the International American Conference is of the opinion
that the treaties on literary and artistic property, on patents and on
trade-marks, celebrated by the South American Congress of Monte-
video, fully guaranty and protect the rights of property which are
the subject of the provisions therein contained :

Resolved, That the conference recommend, both to those Govern-
ments of America which accept the proposition of holding the Con-
gress, but could not participate in its deliberations, and to those not
invited thereto but who are represented in this conference, that they
give their adhesion to the said treaties.

Jose S. Decoud,

Delegate from Paraguay.
Andrew Carnegie,

Delegate from United States.
Climaco Calderon,

Delegate from Colombia.

The United States of America must give in its
adhesion to international copyright or stand as the
literary Ishmael of the civilized world.

THE AUTHOR'S NATURAL RIGHT.

The passage of the proposed act is demanded by
so-called practical reasons, referred to hereinafter,
which do not deal specially with the right and
wrong of the matter, but if no such " practical " rea-
sons existed it is a sufficient reason for its passage
that an author has a natural exclusive right to the
thing having a value in exchange which he produces

84 THE QUESTION OF COPYRIGHT.

by the labor of his brain and hand. No one denies
and every one admits that all men have certain nat-
ural rights which exist independently of all written
statutes.

The common law of England — inherited and
adopted to a great extent by the several American
States — is built upon and developed out of the nat-
ural rights of men. Our Declaration of Independ-
ence names some of these natural rights, calling
them self-evident, as the basis and foundation of our
right to national existence, to wit, life, liberty, and
the pursuit of happiness.

An equally self-evident natural right is the right
of property, the right to exclusively possess what-
ever in the nature of property a man rightfully
acquires. Civilized and uncivilized people alike
recognize this right. No form of society, no matter
how rude, no matter how cultivated, is possible with-
out the recognition of this right of property. What-
ever has value in exchange is, when possessed,
property. The visible expression of an author's
mental conception, written or printed, has value in
exchange, and is therefore property in the full sense
of the word. No better title to an article of prop-
erty can be imagined than that which is rooted in
the creation of the article ; creation gives the
strongest possible title. The author holds his prop-
erty by this first, best, and highest of all titles.

The principle is as old as the property itself, that what a man cre-
ates by his own labor, out of his own materials, is his own to enjoy
to the exclusion of all others. {Drone on Copyright, p. 4.)

The monopoly of authors and inventors rests on the general senti-

INTERNATIONAL COPYRIGHT. 8$

ment underlying all civilized law, that a man should be protected in
the enjoyment of the fruits of his own labor. (Copyright article,
Encyclopedia Britannica.)

The right of an author to the production of his mind is ac-
knowledged everywhere. It is a prevailing feeling, and none can
doubt it, that a man's book is his book — his property. (Daniel
Webster, 6 Peters' Reports, 653.)

The author cannot enjoy the value in exchange
of his property if others reproduce the visible ex-
pression of his mental conception without his per-
mission. To do so is to appropriate his valuable
thing without giving value in exchange. The au-
thor's right is incorporeal, but it is not a small thing
because incorporeal. Milton's Paradise Lost, Haw-
thorne's Scarlet Letter, and Shakespeare's Hamlet
suffice for evidence on that point. It is not a
unique kind of property because incorporeal. The
major part of the wealth of the world is incorporeal.
H. D. Macleod, in his article on copyright in the
Political Encyclopedia, says: "it is probable that
nineteen-twentieths of existing wealth is in this
form ; " the franchises of ferries, railways, telegraph
and telephone companies, patents, trade-marks,
good-will, shares in incorporated companies, and
annuities of all sorts are familiar instances of incor-
poreal property.

The courts of the several States, as well as the
United States Supreme Court, admit the author's
natural exclusive right to his intellectual property,
in that they are unanimous in holding that the au-
thor has a natural, exclusive, and perpetual right in
the visible expression of his mental conception so
long as it is expressed in written words.

86 THE QUESTION OF COPYRIGHT.

Two principles are settled in English and American jurisprudence:
At common law the owner of an unpublished literary composition has
an absolute property therein. {Drone on Copyright, p. 101.)

When a man, before uninformed in the matter,
comes to understand that the author has an ad-
mitted natural and exclusive right to the visible
expression of his mental conception when that con-
ception is expressed in written words, his common
sense forbids him to entertain the notion that he
loses such right by expressing the conception in
printed words. The admission of the right as to
written words settles the question.

It is sometimes attempted to stigmatize copy-
right as monopoly, and writers of loose and careless
habit sometimes speak of copyright as monopoly.
It is no more monopoly than is the ordinary owner-
ship of a horse or a piece of land. Blackstone says
that a monopoly is —

A license or privilege . . . whereby the subject in general
is restrained from that liberty of manufacturing or trading which he
had before.

The law dictionaries define it in the same way.
A monopoly takes away from the public the enjoy-
ment of something which the public before pos-
sessed. Neither copyright nor patent does this, for
neither can be applied to anything which is not new ;
neither can be applied to anything which the public
before possessed. The author and inventor must
produce something new in order to be entitled to
copyright or patent. Notwithstanding this allusion
to patents, the mistake should not be made of sup-
posing that patents and copyrights stand on the

INTERNATIONAL COPYRIGHT.

same basis as to natural exclusive right, for they u^f
not ; the difference between them, in this regard, is
radical.

A patent covers the idea or principle of an inven-
tion ; copyright does not cover the author's idea,
but only the language in which he clothes the idea;
hence arises a radical difference which it is not now
necessary to discuss.

THE COMMON-LAW RIGHT.

As has been already remarked, the common law
of England, inherited and adopted, to a great ex-
tent, by the several American States, is built upon
and developed out of the natural rights of man.

The common law of England always recognized
the natural, exclusive right of an author to the
written and printed expression of his mental con-
ception from the time when printing was introduced
into England by Caxton, in 1474. From 1474 to
1710 the common-law right was more or less inter-
fered with at times by Crown grants in the nature
of genuine monopoly, including decrees of the Star
Chamber.

April 10, 1710, the Statute of Anne, so-called, was
passed. It gave authors of works then existing the
sole right of printing the same for twenty-one years
and no longer. It gave to authors of works not
then printed, and to their assigns, the sole right for
fourteen years, and if the author was then alive he
had the right to a prolongation for fourteen years
more. In the copyright article of the Political En-
cyclopedia, Macleod correctly says :

86 THE QUESTION OF COPYRIGHT.

Tc is quite impossible to read this act without seeing that it dis-
tinctly recognizes copyright as existing already, and independently of
the act. All they did was to enact certain statutory penalties for
its infringement. But that, by a well-known rule of law, in no way
affected proceedings at common law. We have seen that the courts
of law never raised the slightest doubt as to the existence of copy-
right at common law. We shall now see how the court of chancery
regarded it. As the act gave twenty-one years for old copies from
April 10, 1710, no question on copyright at common law could arise
before 1731. In 1735, Sir Joseph Jekyll granted an injunction in
the case of Eyre vs. Walker, to restrain the defendant from printing
The Whole Duty of Jlfan, the first assignment of which had been
made in December, 1657, being seventy-eight years before. In the
same year, Lord Talbot, in the case of Matte vs. Falkner, granted
an injunction restraining the defendant from printing Nelson's fes-
tivals and Fasts, printed in 1703, during the life of the author, who
died in 17 14. In 1739 Lord Hardwicke, in the case of Tonson
and another vs. Walker, otherwise Stanton, granted an injunction
restraining the defendant from printing Milton's Paradise Lost, the
copyright of which was assigned in 1667, or seventy-two years be-
fore. In 1752 Lord Hardwicke, in the case of Tonson vs. Walker
and Merchant, granted an injunction, restraining the defendants
from printing Milton's Paradise or Life or Notes. All this time
there had never been any solemn decision by the King's Bench as to
the existence of copyright at common law, or as to how it was affected
by the statute of Anne. But the court of chancery never granted an
injunction unless the legal right was clear and undisputed. If there
had been any doubt about it they would have sent it to be argued in
a court of common law.

In 1769 the question came before the Court of
King's Bench (the court of last resort, the House
of Lords excepted) in the case of Millar vs. Taylor
(4 Burr., 2303). It was held — three judges in the
affirmative to one in the negative — that the com-
mon-law right existed. In 1774 the question again
came before the Court of King's Bench in the
case of Beckett vs. Donaldson (4 Burr., 2408), and

INTERNATIONAL COPYRIGHT. 89

it was' again decreed that the common-law right
existed. The case was immediately appealed to
the House of Lords and there the eleven judges
gave their opinions as follows on the following
points :

(1) Whether at common law an author of any book or literary
composition had the sole right of first printing and publishing the
same for sale, and might bring an action against any person who
printed, published, and sold the same without his consent ? On this
question there were eight judges in the affirmative and three in the
negative.

(2) If the author had such right originally, did the law take it
away upon his printing and publishing such book or literary com-
position, and might any person afterward reprint and sell for his
own benefit such book or literary composition against the will of
the author? This question was answered in the affirmative by four
judges and in the negative by seven.

(3) If such action would have lain at common law is it taken away
by the statute of 8 Anne, and is an author by the said statute pre-
cluded from every remedy, except on the foundation of the said
statute and on the terms of the conditions prescribed thereby ? Six
of the judges to five decided that the remedy must be under the
statute.

(4) Whether the author of any literary composition and his assigns
had the sole right of printing and publishing the same in perpetuity
by the common law ? Which question was decided in favor of the
author by seven judges to four.

(5) Whether this right is any way impeached, restrained, or taken
away by the statute of 8 Anne ? Six to five judges decided that the
right is taken away by the statute.

This decision is squarely to the effect that the
common-law right was in full force up to the pas-
sage of the Statute of Anne, April 10, 17 10. There
was a clear preponderance of judges to this effect,
but it was also decided — six judges to five — that the
Statute of Anne took away the common-law right.

90 THE QUESTION OF COPYRIGHT.

Lord Mansfield, as one of the judges of the Court
of King's Bench, had decided that the Statute of
Anne had not taken away the common-law right ;
as a peer, he refrained from voting through motives
of delicacy ; had he voted in the House of Lords
the decision of the Court of King's Bench that the
Statute of Anne had not taken away the common-
law right would have stood unreversed. That the
common law of England had always recognized the
author's natural right was fully established by these
decisions. To show that the common law gave
copyright is to establish the natural right, for the
common law is built upon and developed out of
natural right.

The clause of the Constitution of the United States
of America which authorizes the grant of copyright
is to be found in Article I., section 8 :

The Congress shall have power ... to promote the progress
of science and the useful arts by securing, for limited times, to au-
thors and inventors, the exclusive rights to their respective writings
and discoveries ; . . . also to make all laws which shall be neces-
sary and proper for carrying into execution the foregoing powers.

The object stated in the grant is " to promote the
progress of science and the useful arts." The state-
ment of the object has nothing to do with the ques-
tion whether the Constitution recognizes the au-
thor's natural rights. The use of the word secure
instead of give or grant is some recognition of the
natural ri^ht. This Constitution was formed in

INTERNATIONAL COPYRIGHT. 9 1

1787, just thirteen years after the House of Lords
had expressly recognized the natural right.

The well-informed men who framed the Constitu-
tion could not have been ignorant of that decision
of the House of Lords, for that was a famous de-
cision of widespread interest and notoriety. They
were framing a grant of delegated powers to the Gen-
eral Government. They knew that such of the States
as fully adopted the common law adopted with it the
recognition of the author's natural right. It seemed
to them expedient to give to the General Govern-
ment the supreme power in the premises " for limited
times." They did not intend to affirm or deny the
natural right.

The natural inference from the language used, in
the light of the surrounding facts, is that they knew
of the natural right, the common-law right ; that
they did not choose to meddle with it, but did deem
it expedient to give the General Government su-
preme power in the premises " for limited times."

Possibly they might have thought that a natural
right necessarily means a perpetual right ; and the
United States Supreme Court in dealing with the
question, as referred to hereinafter, may have been
troubled by the same idea. Natural right does not
necessarily mean perpetual right. In all forms of
society, all kinds of property are held under such
conditions and limitations as society deems reason-
able.

Under the right of eminent domain, governments
take private property for public use upon suit-
able remuneration, when public necessity and con-

92 THE QUESTION OF COPYRIGHT.

venience demand it. In some cases private prop-
erty is taken for public use without compensation,
notably when a man's building is torn down to pre-
vent the spread of a conflagration. The disposition
of property by last will and testament is regulated
by law. In England the lands cannot be alienated
from the eldest son. In not to exceed a term of
one hundred years the entire value of almost every
specific piece of property is taken from the owner
by the public in the form of taxes, in return for the
protection and security which society gives.

It is entirely reasonable that the law should
bring a copyright to an end at the expiration of a
term of years — this, especially, in view of the fact
that it is not usual to tax copyrights from year to
year. It cannot be reasonably maintained that the
premise of natural right necessarily leads to the
conclusion of perpetuity.

COMMON-LAW RIGHT IN THE UNITED STATES.

It is universally conceded that wherever the com-
mon law exists in the several American States, it is
derived from and is identical with the English com-
mon law. It has been shown, beyond question,
that English common law recognizes the author's
natural right. It follows as a necessary conclusion
that the American common law, wherever it exists,
gives copyright, and recognizes the author's natural
right.

Connecticut passed a copyright law in January,
1783 ; Massachusetts, in March, 1783 ; Virginia, in
1785, and New York, in 1786. They all recognize

INTERNATIONAL COPYRIGHT. 93

the pre-existing common-law right, the exclusive
natural right. It has been supposed that the
United States Supreme Court decided that the
common law does not give copyright in the United
States, in the case of Wheaton vs. Peters (8
Peters Reports, 591), decided in A.D. 1834. Such
is not the fact. The opinion in that case decided
only two points connected with this question, to
wit : (1) that the United States, as a nation, has no
common law, and (2) that as to Pennsylvania, where
the controversy in question arose, there was no
proof that the common law had been adopted.
This is what the United States Supreme Court said
in that case :

It is clear there can be no common law of the United States.
The Federal Government is composed of twenty-four sovereign and
independent States ; each of which may have its local usages, cus-
toms, and common law. There is no principle which pervades the
Union and has the authority of law that is not embodied in the
Constitution or laws of the Union. The common law could be
made a part of our Federal system only by legislative adoption.

It is insisted that our ancestors, when they migrated to this
country, brought with them the English common law as a part of
their heritage.

That this was the case to a limited extent is admitted. No one
will contend that the common law, as it existed in England, has ever
been in force in all its provisions in any State in this Union. It was
adopted so far only as its principles were suited to the condition of
the colonies ; and from this circumstance we see what is common
law in one State is not so considered in another. The judicial de-
cisions, the usages and customs of the respective States, must deter-
mine how far the common law has been introduced and sanctioned
in each.

In the argument it was insisted that no presumption could be
drawn against the existence of the common law as to copyrights in

94 THE QUESTION OF COPYRIGHT.

Pennsylvania, from the fact of its never having been asserted until
the commencement of this suit.

It may be true, in general, that the failure to assert any particular
right may afford no evidence of the non-existence of such right. But
the present case may well form an exception to this rule.

If the common law, in all its provisions, has not been introduced
into Pennsylvania, to what extent has it been adopted ? Must not
this court have some evidence on this subject ? If no right, such as
is set up by the complainants, has heretofore been asserted, no cus-
tom or usage established, no judicial decision been given, can the
conclusion be justified that, by the common law of Pennsylvania, an
author has a perpetual property in the copyright of his works? (8
Peters, 658.)

Mr. Drone, in his book on copyright, says all that
is necessary to be said about this remarkable decis-
ion wherein the dissenting opinion has easily the
best of the argument :

The judgment of the court, as has been seen, was based on two
grounds : (1) That the common law of England did not prevail in
the United States. (2) That in England it had been decided that
the common-law property in published works had been taken away by
statute. The first position rested on a foundation of sand, which
has since been swept away. " The whole structure of our present
jurisdiction," said Mr. Justice Thompson in his dissenting opinion,
"stands upon the original foundation of the common law." The
doctrine is now well settled in this country that a complete property
in unpublished works is secured by the common law. This was
admitted by the Supreme Court in Wheaton vs. Peters. It has
since been repeatedly affirmed by the same tribunal, by the circuit
court of the United States, and by every State court in which the
question has been raised. If the common law thus prevails in the
United States with reference to unpublished productions, there is no
principle, independently of the statute, by which it can be held not
to prevail in the case of published works. (Drone on Copyright, 47.)

In right reason and sound logic the common law

INTERNATIONAL COPYRIGHT. 95

does exist in the United States, and that existence
is conclusive of the existence of the natural right.

THE WRONG TO AMERICAN AUTHORS.

The Constitution authorizes copyrights in order
" to promote the progress of science and the useful
arts," primarily within the United States. Our
present procedure is a hinderance to. the " progress
of science and the useful arts" in the United States
in more ways than one.

One way in which our present practice hinders
the progress of science and the useful arts within
our borders is by the repression of the development
of American intellectual life, by the repression of
the home production of literary works through sub-
jecting native authors to a kind of competition to
which no other class of American workers is sub-
jected, a kind of competition which is ruinous and
destructive.

American authors are subjected to untrammeled
competition with English authors who do not re-
ceive a farthing for their labor. All stories compete
with all other stories so far as the demand of the
story-reading public is concerned ; and the story-
reading public of America comprises many millions
of people. An American publisher can, within the
pale of the law, appropriate and publish an English
story without remuneration to the English writer.
It is well and widely known that some American
publishers do this on a large scale. Since such
American publishers pay nothing to the English
authors whose stories they appropriate and pub-

g6 THE QUESTION OF COPYRIGHT.

lish, other American publishers cannot afford to pay
American authors for writing stories except in those
comparatively rare cases where the American author
has already acquired an established reputation.

The new American author has no chance worthy
of the name for getting a start, and the sale of the
works of American authors of established reputation
is to a degree, prevented by this competition, in
which everything is against the American author.
It is not to the point to refer to persons engaged in
other kinds of business, the profession of law for
instance, and to say that competition exists there
as everywhere else, that the bright men succeed and
the dullards fail. The parallel is wholly wanting.
If American lawyers had to compete not only with
each other, but also with a numerous class of lawyers
receiving nothing for their labor, the parallel would
be complete, and the American lawyer would need
no extended argument to convince him of the un-
fairness of the arrangement. The American people
in general have no adequate idea of the extent of
this mischief. Mr. Henry Holt, a well-known New
York city publisher, said upon this point before the
Senate Committee on Patents in 1886:

The effect of this state of affairs on the opportunities of Ameri-
can authors to get into print or stay in print is very disastrous. I
have unused manuscripts in my safe and have lately sent back manu-
scripts which ought to have been published, but I was afraid to
undertake the publication ; the market will not support them. I
lately published, I think, the most important American work of fic-
tion with a single exception that I ever published. The critics re-
ceived it with praise. I had to write the author the other day that
it had been a financial failure. She is a poor girl of great talent.

INTERNATIONAL COPYRIGHT. 97

Her old parents are living, and she has to support them and an old
family servant.

At the same hearing Mr. Dana Estes, of the well-
known Boston firm of Estes, Lauriat & Co., said:

It has been said by some gentlemen that the flood of British
reprints has a discouraging effect upon American authorship. I will
add my mite to that statement. For two years past, though I belong
to a publishing house that emits nearly $1,000,000 worth of books
per year, I have absolutely refused to entertain the idea of publishing
an American manuscript. I have returned many scores, if not hun-
dreds, of manuscripts of American authors, unopened even, simply
from the fact that it is impossible to make the books of most
American authors pay, unless they are first published and acquire
recognition through the columns of the magazines. Were it not for
that one saving opportunity of the great American magazines which
are now the leading ones of the world and have an international repu-
tation and circulation, American authorship would be at a still lower
ebb than it is at present. Take, for instance, an author of eminent
genius who has just arisen. I refer to Charles Egbert Craddock —
Miss Murfree. Had her manuscript been offered to any one of
half a dozen American publishers it is probable it would have been
refused. She got an entering wedge by having her articles published
in a magazine and sprang into a world-wide reputation at once.
How many of these " mute inglorious Miltons" there are in the manu-
scripts, tons of manuscripts, scattered about the country, I do not
know, but I venture to say there are a good many.

Sir Henry Maine said of the American people in
his book on Popular Government that their " neglect
to exercise their power for the advantage of foreign
writers has condemned the whole American com-
munity to a literary servitude unparalleled in the
history of thought."

The mischief that is being wrought upon Amer-
ican intellectual life of the literary sort, in this man-

98 THE QUESTION OF COPYRIGHT.

ner, is very great. It is none the less real because
it cannot be accurately stated in dollars and cents.

ENGLISH MARKET FOR AMERICAN AUTHORS.

American authors of established reputation would
be largely benefited by any sort of international
copyright with England. English publishers now
appropriate the stories of American writers as
American publishers appropriate the stories of
English authors. Reciprocity in copyright would
give the English market to American authors.

VITIATED EDUCATION OF AMERICANS.

The proposition that the story-reading public of
America comprises many millions of people, and
that the major part are youth, is easy of acceptance.
That they are having offered to them an exhaustless
stream of English stories written by authors of no
special repute, is equally plain. That these stories
deal with kings and queens, orders of nobility, an
established church, a standing army, monarchical
institutions generally, and with English manners,
scenes, customs, and social usages is almost a matter
of necessity. Probably a large portion of these
stories deal with some tale of seduction.

The good stories of England were long since ex-
hausted by the American reprinters, and as a con-
sequence we are having poured out upon us an un-
stinted flood of printed stuff, often nasty, still oftener
weak and silly, and always foreign in tone, senti-
ment, and description. In the aggregate these

INTERNATIONAL COPYRIGHT. 99

stories constitute a powerful means of undesirable
education, as well as of vitiation of American taste ;
and this force is exerted more largely than other-
wise upon minds and morals which are in the plastic
and formative stage. It is entirely true that many
of the cheap American reprints are not stories and
that many of the reprinted English stories are good
stories, but these are an exception to the general
rule, and such exceptions constitute a small per-
centage of the whole ; the healthy part bears about
the same ratio to the unhealthy that the nutritive
element in a glass of strong beer bears to the baleful
part. Mr. Henry Holt, the New York publisher
already mentioned, said upon this point before the
Senate committee in 1886:

It is a vastly important subject, this subject of the prosperity of
American authors. It is a subject that reaches to the foundation of
our civilization. It is the question whether we are to continue to
have an American literature — for, as you all know, American litera-
ture is languishing even now — the question whether outside of the
daily and periodical press we are to derive our ways of thinking, our
ideal of life and politics, from alien, unsympathetic sources. But
this is not the whole question. It is rapidly becoming a question
whether, with a few rare exceptions, we are going to have any seri-
ous books at all.

Thought, morals, and education are the secret
springs of natural life. We are allowing them to be
contaminated at their sources.

BARRING OUT GOOD LITERATURE.

Another of the ways in which our present prac-
tice hinders the " progress of science and the useful

IOO THE QUESTION OF COPYRIGHT.

arts " in the United States is by barring out the
really useful literature of England, a thoroughly
healthy mental and moral pabulum. As regards
works on law, theology, medicine, governmental sci-
ence, political economy, physical science, art, biog-
raphy, history, travel, language, education, and the
like, England is probably more prolific in eminently
useful books, in proportion to her population, than
any other country in the world. Unlike many of
her stories, these have no special tone which is for-
eign to American institutions. It would be a great
practical blessing for the American people if the
great mass of these publications were promptly re-
produced in America. They are, however, precisely
the kind of books which will never be reprinted here,
except to a very small extent, without the protec-
tion of copyright.

Almost every such work, separately considered,
appeals to a limited class only. The republication
of one of them involves, as a rule, a very consider-
able outlay. If reprinted at all, it must be in the
shape of books well printed on good paper, well
bound, and fit for preservation in a library. No
publisher dare undertake the necessary outlay — the
publication of a book always being an experiment,
financially — unless he is sure he can have the whole
limited field to himself. One effect which may con-
fidently be expected from the passage of such a bill
as is now proposed is the republication here of the
great volume of English books of the class now
under discussion which are now sealed books to the
great mass of the American people.

INTERNATIONAL COPYRIGHT. IOI

CHEAPENING THE PRICE OF BOOKS.

Still another way in which our present practice
hinders the "progress of science and the useful
arts" in the United States is by preventing the
cheapening of the prices of good and desirable
books. By " good and desirable books " is meant
all manner of books, except the very cheap
paper covered or no-covered reprints of English
stories.

International copyright between Great Britain
and the United States will open the American book
market to English authors and English publishers.
This can mean nothing less than the addition of an
enormous mass of competition to the existing com-
petition in American book publishing. This added
competition must, in the nature of things, cheapen
the price of all books, those of American origin and
those of English origin alike. It is the sure effect
of competition to reduce prices. It will never be
possible to take a backward step in international
copyright after the American public once feels this
effect of such a law as is now proposed.

The ordinary mode of attempting to show that
we get books cheaper because of the absence of in-
ternational copyright is to exhibit a list of English
books published at a high price and a parallel list of
cheap American reprints of the same. It is quite
as easy to exhibit a list of English books published
at a high, price and a parallel list of cheap English
reprints of the same. It is also quite as easy to
exhibit a list of American books published at a

102 THE QUESTION OF COPYRIGHT.

comparatively high price and a parallel list of cheap
American reprints of the same.

Many English books are first published at a high
price to be bought almost solely by the English cir-
culating libraries, and when the freshness is worn
off excellent shilling editions of the same appear at
the English railway book-stalls. American books
which prove to be a success are likewise reproduced
subsequently in the cheapest form consistent with
good paper and good print. The exhibition of a
list of English books published at a high price and
a parallel list of cheap American reprints of the
same, for the purpose of showing that the absence
of international copyright gives us cheap books, if
done with full knowledge is an attempt at deceit.

That " the selling price of a book depends, not
on the copyright, but on the extent of the market
that can be assured for it," is a trade maxim settled
beyond dispute. A very desirable and certain re-
sult of international copyright is stated as follows,
in the words of George Haven Putnam, the well-
known American publisher :

An international copyright will render practicable a large number
of international undertakings which cannot be ventured upon with-
out the assured control of several markets. The volumes for these
international series will be secured from the leading writers of the
world — American, English, and Continental — and the compensation
paid to these writers, together with the cost of the production of
illustrations, maps, tables, etc., will be divided among the several
editions. The lower the proportion of this first outlay to be charged
to the American edition, the lower the price at which this can be
furnished ; and as the publisher secures the most satisfactory returns
from large sales to a wider circle, the lower the price at which it will
be furnished. It would, perhaps, not be quite correct to say that

INTERNATIONAL COPYRIGHT. 103

these international series would be cheaper than at present, for
there are, as yet, but few examples of them, but it is the case that,
by means of such series (only adequately possible under international
copyright), American readers will secure the best literature of con-
temporary writers at far lower prices than can ever otherwise be
practicable.

France and Germany are thoroughly under the
operation of international copyright, and books are
much cheaper there than in the United States ; the
fact is not accounted for by the difference in labor
cost, for the one occupation of the printer is pre-
cisely the occupation wherein labor cost is most
nearly the same here and abroad.

This one inevitable result of international copy-
right, the cheapening of the great mass of all real
books, easily outweighs the sole objection which it
is possible to maintain against international copy-
right, to wit, that it will increase by a few cents the
prices of the cheapest reprints of English stories.

THE CHEAP REPRINTS.

It is admitted that the proposed act, or any other
of a similar nature, will raise the price of the very
cheap reprints of English stories yet to be written a
few cents apiece. A pamphlet of that sort now
costing twenty cents will then cost twenty-five
cents. Of the additional price, two cents will go
to the author, and three cents will go into better
paper, better print, and better binding. For the
five cents of increased cost, an American story will
be furnished oftener than an English story ; an
American author will get pay for his labor, and the

104 THE QUESTION OF COPYRIGHT.

reader will get a book that is one hundred per cent,
better than the old one in paper, print, and bind-
ing.

E. P. Roe's Barriers Burned Away, Amelia E.
Barr's Bow of Orange Ribbon, Miss Green's The
Leavenworth Case, and Mrs. Prentice's Stepping
Heavenward, all American copyrighted books, well
printed on good paper, well bound in paper covers,
and selling at twenty-five cents apiece, are fair sam-
ples of what will take place along the whole line
of American fiction if this bill becomes a law. This
law will have no effect on the literature of the past.

PATENT INSIDES.

It is sometimes urged that country newspapers
will, if such a bill as this becomes a law, be cut off
from culling from foreign newspapers and periodi-
cals. Such an effect is not possible ; it is not prac-
tically possible to copyright foreign newspapers and
periodicals under the proposed law ; it requires that
the two copies to be deposited with the Librarian
of Congress on or before the day of publication
shall be printed from type set in this country, or
from plates made therefrom ; that provision practi-
cally cuts off foreign newspapers and periodicals
from American copyright, and our newspapers will
remain free to cull from them at pleasure.

ADVOCATES OF INTERNATIONAL COPYRIGHT.

In 1837 a Senate committee composed of Clay,
Webster, Buchanan, Preston, and Ewing, of Ohio,

INTERNATIONAL COPYRIGHT. 10$

made a report upon international copyright contain-
ing the following language :

That authors and inventors have, according to the practice among
civilized nations, a property in the respective productions of their
genius is incontestable, and that this property should be protected as
effectually as any other property is by law, follows as a legitimate
consequence. Authors and inventors are among the greatest bene-
factors of mankind. They are often dependent exclusively upon
their own mental labors for the means of subsistence, and are fre-
quently from the nature of their pursuits, or the constitution of their
minds, incapable of applying that provident care to worldly affairs
which other classes of society are in the habit of bestowing. These
considerations give additional strength to their just title to the pro-
tection of the law.

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

The committee think that this distinction in the condition of the
two descriptions of property is not just, and that it ought to be
remedied by some safe and cautious amendment of the law.

Now follows the expressions of some of the per-
sons and organizations who are asking for interna-
tional copyright to-day. The list includes: (i) Pres-
ident Harrison ; (2) Ex-President Cleveland ; (3)
144 leading American authors ; (4) Western authors ;
(5) Southern authors ; (6) American musical com-

106 THE QUESTION OF COPYRIGHT.

posers ; (7) 60 colleges ; (8) Leading educators ; (9)
200 leading librarians ; (10) The American Publish-
ers' Copyright League; (11) The American news-
paper publishers; (12) The International Typo-
graphical Union; (13) American employing printers;
(14) The Electric Club of New York; (15) The
Chicago Copyright League ; (16) The International
Copyright Association, of New England ; (17) Car-
dinal Gibbons ; (18) Dr. Weir Mitchell ; (19) George
Ticknor Curtis; (20) Gladstone; (21) The Ameri-
can magazines unanimously; (22) 281 leading news-
papers.

president Harrison's recommendation.

President Benjamin Harrison, in his message to
Congress, December 3, 1889, wrote as follows:

The subject of an international copyright has been frequently
commended to the attention of Congress by my predecessors. The
enactment of such a law would be eminently wise and just.

EX-PRESIDENT GROVER CLEVELAND FAVORS THE
BILL.

New York, December 6, 1889.
My Dear Mr. Johnson : I hope that I need not assure you how
much I regret my inability to be with you and other friends and
advocates of international copyright in this hour. It seems to me
very strange that a movement having so much to recommend it to
the favor of just and honest men should languish in the hands of
our law-makers. It is not pleasant to have forced upon one the
reflection that perhaps the fact that it is simply just and fair is to its
present disadvantage. And yet I believe, and I know you and the
others engaged in the cause believe, that ultimately and with contin-
ued effort, the friends of this reform will see their hopes realized.

INTERNATIONAL COPYRIGHT. 107

Then it will be a great satisfaction to know and feel that success wa3
achieved by force of fairness, justice, and morality.

Grover Cleveland.
Mr. R. U. Johnson, Secretary.

PETITION OF AUTHORS.

The undersigned American citizens, who earn
their living in whole or in part by their pen, and
who are put at disadvantage in their own country
by the publication of foreign books without pay-
ment to the author, so that American books are
undersold in the American market, to the detriment
of American literature, urge the passage by Con-
gress of an International Copyright Law, which will
protect the rights of authors, and will enable Ameri-
can writers to ask from foreign nations the justice
we shall then no longer deny on our own part.

[Signed by 144 of the leading American authors,
as follows:]

Henry Abbey. Hjalmar H. Boyesen.

Lyman Abbott. R. R. Bowker.

Charles Kendall Adams. Francis F. Browne.

Henry C. Adams. Oliver B. Bunce.

Herbert B. Adams. H. C. Bunner.

Oscar Fay Adams. Frances Hodgson Burnett.

Louisa May Alcott. Edwin Lassetter Bynner.

Thomas Bailey Aldrich. G. W. Cable.

Edward Atkinson. Lizzie W. Champney.

Leonard W. Bacon. S. L. Clemens (Mark Twain).

Hubert H. Bancroft. Titus Munson Coan.

Charles Barnard. Robert Collyer.

Amelia E. Barr. Clarence Cook.

Henry Ward Beecher. George Willis Cooke.

Edward Bellamy. J. Esten Cooke.

William Henry Bishop. A. Cleveland Coxe.

io8

THE QUESTION OF COPYRIGHT.

George William Curtis.

Charles De Kay.

Eugene L. Didier.

John Dimitry.

Nathan Haskell Dole.

Maurice Francis Egan.

Edward Eggleston.

George Gary Eggleston.

Richard T. Ely.

Edgar Fawcett.

Charles Gayarre.

Richard Watson Gilder,

Arthur Gilman.

James R.Gilmore (Edmund Kirke)

Washington Gladden.

Parke Godwin.

Robert Grant.

F. V. Greene.

Edward Greey.

William Elliot Griffis.

Hattie Tyng Griswold.

W. M. Griswold.

Louise Imogen Guiney.

John Habberton.

Edward E. Hale.

J. Hall.

William A. Hammond.

Marion Harland.

Joel Chandler Harris.

Miriam Coles Harris.

Wm. T. Harris.

James A. Harrison.

J. M. Hart.

Bret Harte.

Thos. Wentworth Higginson.

Edward S. Holden.

Oliver Wendell Holmes.

James K. Hosmer.

W. D. Howells.

Ernest Ingersoll.

Helen Jackson (H. H.).
Sara O. Jewett.
Rossiter Johnson.
Ellen Olney Kirk.
Thos. W. Knox.
Martha J. Lamb.
George Parsons Lathrop.
Henry Cabot Lodge.
Benson J. Lossing.
J. R. Lowell.
Hamilton W. Mabie.
James McCosh.
John Bach McMaster.
.Albert Mathews.
Brander Matthews.
Edwin D. Mead.
Donald G. Mitchell.
T. T. Munger.
Anna Katharine Green.
George Walton Green.
Harry Harland (Sidney Luska).
John Hay.
Henry F. Keenan.
Simon Newcomb.
R. Heber Newton.
Charles Ledyard Norton.
Grace A. Oliver.
John Boyle O'Reilly.
Francis Parkman.
James Parton.
P. Y. Pember.
Thomas S. Perry.
Ben Perley Poore.
David L. Proudfit.
Isaac L. Rice.
Charles F. Richardson.
E. P. Roe.
J. T. Rothrock.
Philip Schaff.
James Schouler.

INTERNATIONAL COPYRIGHT. IO9

Horace E. Scudder. David A. Wells.

Eugene Schuyler. Horace White.

Isaac Sharpless. William D. Whitney.

Albert Shaw. John G. Whittier.

George William Sheldon. Constance Fenimore Woolson.

E. V. Smalley. John Burroughs.

Ainsworth R. Spofford. Rose Elizabeth Cleveland.

Edmund C. Stedman. Mary Mapes Dodge.

Frederic J. Stimson. Henry George.

Frank R. Stockton. W. Hamilton Gibson.

R. H. Stoddard. Mary N. Murfree (Charles Egbert

Maurice Thompson. Craddock).

Moses Coit Tyler. Harriet Prescott Spofford.

Francis H. Underwood. Walt Whitman.

William Hayes Ward. Adeline D. T. Whitney.

Susan Hayes Ward. George Bancroft.

Chas. Dudley Warner.

WESTERN AUTHORS FAVOR THE BILL.

The following resolution was adopted by the
Western Association of Writers, in convention,
June, 1886, and was re-adopted in 1889-90:

Resolved, That this convention earnestly presents to the considera-
tion and urges the importance, justice, and feasibility of Interna-
tional Copyright upon our members of Congress and United States
Senators ; and that we hold the establishment of just and permanent
relations with England and other friendly nations upon the subject
of copyright to be a necessity to the best success of American author-
ship.

In addition to this resolution, the members of the
association petitioned Congress for the passage of
the bill.

In an address, dated February 28, 1890, the ex-
ecutive committee of the association says:

A good international copyright law, so long hoped for from Con-
gress, will insure protection to foreign authors in our own land and

IIO THE QUESTION OF COPYRIGHT.

to American authors in foreign lands. It will do more. It will
place the books of American writers on an equal footing financially
with those of their foreign contemporaries, will tend to increase the
sale of American books, and will encourage the greatest mental
activity of American thinkers. From this may be expected the
greatest benefit to our republican government. For American books
embodying American ideas will then gain, probably, at least as wide
a hearing as foreign books clothing foreign ideas.

PETITION OF SOUTHERN AUTHORS.

To the Honorable the Af embers of the House of Representatives from
the Southern States :

The undersigned, writers connected with Southern literature or
journalism, respectfully invoke your hearty aid in behalf of the
Chace-Breckinridge International Copyright bill, now on the calen-
dar of the House of Representatives. We believe this bill to be
both just in principle and necessary to the normal development of
American literature, and that, instead of increasing the price of
books, as has been feared, it will tend to the opposite effect by
reason of the larger editions which publishers, thus secured in their
legitimate market, will be enabled to put forth. Since it cannot be
retroactive, it will in no way affect the price of any volume which
shall have been printed up to the date at which it will go into opera-
tion. In other words, the present literature of the world will be
open to as cheap republication after the passage of the bill as before.
We particularly desire to call your attention to the revival of literary
activity in the South. No portion of the country is more interested
in the fullest security of literary property, for in no portion will the
development of literature be more greatly aided by this bill. Its
passage will remove from our country the national disgrace of tolerat-
ing literary piracy.

Signed by Thomas Nelson Page, Ame'lie Rives Chanler, Joel
Chandler Harris, Frances Hodgson Burnett, Mary N. Mur-
free, Charles H. Jones, George W. Cable, Rachael J. Phil-
brick, Col. Richard M. Johnston, Marion Harland, F. H.
Richardson, Will Wallace Harney, Charles H. Smith, William
H. Hayne, Augusta Evans Wilson, Elizabeth Bisland, R. T.
W. Duke, Jr., James A. Harrison, M. G. McClelland, A. C.
Gordon, Charles Washington Coleman, Jr., Frances Cour-

INTERNATIONAL COPYRIGHT. I 1 1

tenay Baylor, Constance Cary Harrison, M. Elliot Seawell,
H. S. Edwards, Clifford Lanier, Marion A. Baker, Page M.
Baker, Grace King, William Miller Owen, Robert Burns
Wilson, James Lane Allen, George William Brown, B. L.
Gildersleeve, and eighty other writers of note in the South.

AMERICAN COMPOSERS FAVOR THE BILL.

As may be seen from the following extracts from
many expressions published in the Century Maga-
zine, American musicians strongly favor an interna-
tional copyright bill :

As to an international copyright law, I should hail it with joy.
At this stage of the world's progress such a legal protection should
be everywhere recognized as an author's inalienable right.

Dudley Buck.

The absence of an international copyright law is working directly
to the grave injury of our native composers.

Julius Eichberg.

Justice and expediency alike demand an international copyright,
and every educated person in the country should ask for it.

Arthur Foote.

It seems to me that there is no honorable defence for our present
thievish attitude on the subject of international copyright.

B. J. Lang.

Let us have an international copyright law by all means, and the

sooner the better.

Louis Maas.

It seems to me that the arguments in favor of international copy-
right, as regards works of literature, apply with equal force to musi-
cal compositions.

William Mason.

The present state of the law is an inducement to swindling, and
is degrading to us as a nation. An international copyright law that

112 THE QUESTION OF COPYRIGHT.

would compel American publishers to pay foreign composers for
their works might also prove an encouragement to home talent by
giving our own composers an equal chance with others.

Theodore Thomas.

I am most decidedly in favor of an international copyright law,

by which musical composers and authors in other arts and sciences

will be protected against the outrageous doings of many publishers

in America and in Europe.

Carl Zerrahn.

There must be an international copyright, and that without delay,

or American music will sink into oblivion.

Eugene Thayer.

THE VOICE OF THE COLLEGES.

The following colleges, through their representa-
tive officers, petitioned Congress in favor of the
Chace-Breckinridge bill:

Adelbert, Cleveland, Ohio.

A. & M. College of Texas, College Station, Texas.

Amity College, College Springs, Iowa.

Beloit, Beloit, Wis.

Bethel, Russellville, Ky.

Bowdoin, Brunswick, Me.

Buchtel College, Akron, Ohio.

Carleton College, Northfield, Minn.

Central Tennessee College, Nashville, Tenn.

Central Wesleyan College, Warrington, Me.

Christian University, Canton, Wis.

Dartmouth, Hanover, N. H.

Davidson, Davidson, N. C.

Doane College, Crete, Nebr.

Duray College, Springfield, Miss.

Franklin & Marshall College, Lancaster, Pa.

Franklin College, Franklin, Ind.

Frederick College, Frederick, Md.

Haverford, Haverford, Pa.

Heidelberg, Tiffin, Ohio.

INTERNATIONAL COPYRIGHT. H3

Hobart College, Geneva, N. Y.

Maryland Agricultural College, College Station, Md.

Indiana University, Bloomington, Ind.

Johns Hopkins, Baltimore, Md.

Kentucky State University, Lawrence, Ky.

King College, Bristol, Tenn.

Lawrence University, Appleton, Wis.

Lebanon Valley College, Lebanon, Pa.

Milton College, Wisconsin.

Mississippi College, Clinton, Miss.

Muskingum College, New Concord, Ohio.

Northwestern University, Naperville, 111.

Northwestern University, Scranton, 111.

Ohio University, Athens, Ohio.

Ohio State University, Columbus, Ohio.

Otterbein University, Westerville, Ohio.

Princeton College, Princeton, N. J.

Racine College, Racine, Wis.

Rensselaer Polytechnic Institute, Troy, N. Y.

Richmond College, Richmond, Va.

Ripon, Ripon, Wis.

Rochester University, Rochester, N. Y.

Rutgers College, New Brunswick, N. J.

South Carolina, Columbia, S. C.

State Normal School, Emporia, Kan.

State University, Iowa City, Iowa.

Trinity College, Trinity College, North Carolina.

Tulane University, New Orleans, La.

University of California, Berkeley, Cal.

University of Dakota, Grand Forks, Dak.

University of Denver, Denver, Col.

University of Georgia, Athens, Ga.

University of Mississippi, Oxford, Miss.

University of Missouri, Columbia, Mo.

Upper Iowa University, Fayette, Iowa.

Vanderbilt University, Nashville, Tenn.

Vassar, Poughkeepsie, N. Y.

Wells College, Aurora, N. Y.

Wesleyan University, Middletown, Conn.

Western University of Pennsylvania, Allegheny, Pa.

114 THE QUESTION OF COPYRIGHT.

The faculties of many other colleges are known to
favor the bill.

SUPPORT FROM LEADING EDUCATORS.

At the meeting of the superintendents of the
National Educational Association, held in New
York city February 19, 1890, the following resolu-
tion, on motion of William E. Sheldon, chairman
of the committee on copyright, was unanimously
adopted :

Resolved, That the members of the department of superintendence
of the National Educational Association hereby record our sympathy
with American authors in the effort they are now making to obtain
from Congress an international copyright law ; and we cannot too
strongly express our sense of the necessity of such a measure, both
as an obligation of justice and as a stimulus to American literature
and to the spread of American ideas abroad.

In addition to this general resolution the following
petition was signed :

The Honorable the Senators and Representatives of the Congress of
the United States :
The undersigned, officers and members of the National Educa-
tional Association, respectfully petition you to support the inter-
national copyright bill now pending in both Houses of Congress,
believing that the proposed law would stimulate American literature ;
would promote the sciences and useful arts ; would raise the standard
of reading and give it a better and more national character, and
would be in the interest of the whole people.

W. T. Harris, Commissioner of Education, Washington, D. C;
John Eaton, ex-Commissioner of Education of the United
States ; L. W. Day, Superintendent of Instruction, Cleve-
land, O. ; W. B. Powell, Superintendent of Schools, Wash-
ington, D. C. ; James MacAlister, Superintendent of Public
Schools, Philadelphia ; Wm. M. Griffin, Cook County Normal

INTERNATIONAL COPYRIGHT. 1 1 5

School, Chicago ; L. H. Jones, Superintendent of Schools,
Indianapolis, Ind. ; Richard G. Boone, Professor of Peda-
gogics, Indiana University, Bloomington, Ind. ; A. S. Draper,
Superintendent of Public Instruction, State of New York ;
Edwin C. Hewett, President State Normal University,
Normal, 111. ; E. E. White, ex-President Purdue Univer-
sity ; Geo. Howland, Superintendent of Schools, Chicago,
111. ; J. M. Greenwood, Superintendent of Schools, Kansas
City, Mo. ; Aaron Gove, Superintendent of Schools, Denver,
Col. ; W. H. Bartholomew, State Board of Education of
Kentucky ; J. A. B. Lovett, editor Teacher at Work, Hunts-
ville, Ala. ; Edwin P. Seaver, Superintendent of Public
Schools, Boston, Mass. ; T. J. Morgan, Commissioner Indian
Affairs, Washington, D. C. ; Chas. R. Skinner, Deputy
Superintendent of Public Instruction, State of New York ;
Henry A. Wise, Superintendent of Instruction, Balti-
more, Md. ; Alex. Forbes, Chicago, 111. ; J. A. Shawan,
Superintendent of Schools, Columbus, O. ; George P.
Brown, editor Public School Journal, Bloomington, 111. ;
John Hancock, State Commissioner of Common Schools,
Ohio ; M. A. Newell, State Superintendent of Public In-
struction, Maryland ; John MacDonald, Western School
Journal, Topeka, Kan. ; John M. Bloss, Superintendent
of Schools, Topeka, Kan. ; George B. Lane, State Super-
intendent of Public Instruction, Nebraska, and about sixty
others.

In addition to the above lists, petitions in favor
of the bill from 467 superintendents and teachers in
Indiana, Missouri, Idaho, Wisconsin, Illinois, Iowa,
Kansas, Nebraska, and Minnesota have been re-
ceived and forwarded to Congress :

PETITION FROM LIBRARIANS.

The undersigned, librarians in public, college, and circulating
libraries, etc., respectfully request the passage of the pending inter-
national copyright bill, believing, from our practical knowledge of
the reading public, that the proposed law would stimulate American

Il6 THE QUESTION OF COPYRIGHT.

literature, would promote the sciences and the useful arts, would
raise the standard of reading and give it a better and a more national
tone, and would be in the interest of the whole people.

Signed by Mr. A. R. Spofford and two hundred of the leading
librarians of the country, representing thirty States — the custodians
of the nation's literary treasures, and to a considerable extent the
guides of the people's reading. Among these are librarians of
public and circulating libraries of the cities of New York, Phila-
delphia, Brooklyn, Chicago, St. Louis, Boston, Indianapolis, Co-
lumbus, Detroit, San Francisco, Buffalo, Albany, St. Paul, Providence,
Grand Rapids, Kalamazoo, Rockford, 111. ; Springfield, Ohio ;
Macon, Ga., and many other cities.

RESOLUTIONS OF THE AMERICAN PUBLISHERS'
COPYRIGHT LEAGUE, ADOPTED JANUARY 21, 1 888.

Resolved, That the Chace copyright bill, with the amendments
now recommended by your executive committee, appears fairly to
meet the several requirements of American writers, readers, manu-
facturers, and sellers of books, domestic and foreign, and has the
approval of this league ; and our executive committee is hereby
instructed to take such action as it may find requisite to secure the
passage of the bill with these amendments.

Resolved, That, recognizing from the history of previous attempts,
and from the statement of the present obstacles, the difficulty of
securing any legislation on international copyright (an undertaking
in which such a variety of interests are involved, and in connection
with which such diverse views are being pressed upon Congress), our
executive committee is hereby authorized, in the event of its proving
impracticable to secure the adoption of the bill in the precise form
in which it is now recommended to them, to support on behalf of
the league this bill, or a bill on the general lines of this bill, with
such modifications as may prove requisite to secure the necessary
Congressional support : Provided, always, That no modifications be
accepted that fail to provide for the printing in this country of
foreign books securing American copyright.

The league, which cordially indorses the pending
bill, embraces the following publishing houses:

INTERNATIONAL COPYRIGHT. 117

Amer. Publishing Co. (Frank E. Bliss, president), Hartford, Conn.

Armstrong, A. C, & Son, 714 Broadway, New York.

Alden, John B., 393 Pearl street, New York.

Appleton, D., & Co., 1 and 3 Bond street, New York.

Barnes, A. S., & Co., Ill William street, New York.

Baker & Taylor Co., The, 9 Bond street, New York.

Bovvker, R. R., 330 Pearl street, New York.

Bugbee, David & Co., Bangor, Me.

Carter & Bros., Robert, 530 Broadway, New York.

Cushings & Bailey, Baltimore, Md.

Century Company, 33 East 17th street, New York.

Clarke & Co., Robert, Cincinnati, Ohio.

Crowell, T. Y., & Co., 13 Astor Place, New York.

Clark & Maynard, 771 Broadway, New York.

Dutton & Co., E. P., 21 West 23d street, New York.

Ditson, Oliver & Co., Boston, Mass.

Dodd, Mead & Co., 755 Broadway, New York.

Dillingham, G. W., 31 West 23d street, New York.

Estes & Lauriat, Boston, Mass.

Fords, Howard & Hulbert, 30 Lafayette Place, New York.

Flexner & Staadeker, Louisville, Ky.

Gebbie & Co., Philadelphia, Pa.

Ginn & Co., 743 Broadway, New York.

Harper & Bros., Franklin Square, New York.

Hubbard Bros., Philadelphia, Pa.

Holbrook, M. L., 25 Bond street, New York.

Holt, Henry, & Co., 27 West 23d street, New York.

Houghton, Mifflin & Co., Boston, Mass.

International Copyright Association, Boston.

Ivison, Blakeman & Co., 753 Broadway, New York.

Kirchner & Co., Geo., 17 Union Square, New York.

Lovell Co., John W., 14 Vesey street, New York.

Lothrop & Co., D., Boston, Mass.

Lippincott Co., The J. B., Philadelphia, Pa.

Little, Brown & Co., Boston, Mass.

Lee & Shepard, Boston, Mass.

Lockwood, Geo. R., & Son, 812 Broadway, New York.

Little, J. J., & Co., 10 Astor Place, New York.

Munro, Geo., 17 Vandewater street, New York.

McClurg & Co., A. C, Chicago, 111.

Il8 THE QUESTION OF COPYRIGHT.

Nims & Knight, Troy, N. Y.

Pomeroy, Mark M., 234 Broadway, New York.

Putnam's Sons, G. P., 27 and 29 West 23d street, New York.

Phillips & Hunt, Fifth ave. and 20th street, New York.

Pott & Co., Jas., 14 Astor Place, New York.

Putnam, Davis & Co., Worcester, Mass.

Roberts Bros., Boston, Mass.

Randolph, A. D. F., & Co., 38 West 23d street, New York.

Rand, McNally & Co., Chicago, 111.

Stokes & Bros., F. A., 182 Fifth ave., New York.

Scribner's Sons, Chas. , 743 Broadway, New York.

Street & Smith, 31 Rose street, New York.

Sheldon & Co., 724 Broadway, New York.

St. Paul Book & Stationery Co., St. Paul, Minn.

Ticknor&Co., Boston, Mass.

Tainlor Bros. & Co., 18 Astor Place, New York.

Trow Printing & Bookbinding Co. , New York.

Van Antwerp, Bragg & Co., Cincinnati, Ohio.

Van Nostrand, D., estate of, 23 Murray street, New York.

Webster, Chas. L., & Co., 3 East 14th street. New York.

Whittaker, Thos., 2 Bible House, New York.

Wood & Co., Wm., 56 Lafayette Place, New York.

Wiley, John, & Sons, 15 Astor Place, New York.

White & Allen, 94 Wall street, New York.

Young, E. & J. B., & Co., 6 Cooper Union, New York.

AMERICAN NEWSPAPER PUBLISHERS.

The American Newspaper Publishers' Associa-
tion, in convention February 13, 1890, adopted the
following resolution :

Resolved, That the American Newspaper Publishers' Association is
in hearty sympathy with the efforts now being made by American
authors to obtain from Congress a fuller security for literary property,
and we believe the proposed International Copyright Bill to be in
the interest of the national honor and welfare.

THE PRINTERS' UNIONS.

At the Denver session of the International Typo-

INTERNATIONAL COPYRIGHT. 119

graphical Union, in June, 1889, the following pre-
ambles and resolution were adopted :

Whereas the measure known as the " Chace International Copy-
right Bill " failed to become a law through lack of consideration
in the House of Representatives of the Fiftieth Congress ; and

Whereas said bill will be reintroduced in both houses of the Fifty-
first Congress and put upon its passage at an early date ; and

Whereas said bill contains a clause which guarantees absolutely
that all books copyrighted in this country shall be printed from type
set within the limits of the United States : Therefore,

Resolved, That the International Typographical Union heartily
indorses the "Chace International Copyright Bill," and urges it as a
duty upon subordinate unions and union printers everywhere to use
all honorable means to further the passage of said bill.

In accordance with this resolution, over two
hundred local unions, representing all sections of
the country and comprising 40,000 members, have
strongly indorsed the pending bill, and have urged
its passage upon members of Congress, through a
committee consisting of John L. Kennedy, De Witt
C. Chadwick, and H. S. Sutton.

THE EMPLOYING PRINTERS OF THE UNITED STATES.

At the third annual meeting of the United Ty-
pothetae of America, held at St. Louis, Mo., October
8, 9, and 10, 1889, the following resolution was pre-
sented to the convention from the committee on
copyright, consisting of Messrs. Theodore L. De
Vinne, W. J. Gilbert, and P. F. Pettibone, and was
adopted :

Resolved, That the association appoint a delegate to the next meet-
ing of the American Copyright League, to be held in New York
city, and that we here record our approval of the general principle

120 THE QUESTION OF COPYRIGHT.

of international copyright, and especially of the provision that all
books copyrighted shall be printed in the United States.

THE STRONGEST PATENT CLUB IN THE COUNTRY.

New York, February 20, 1890.
Resolved, That the Electric Club of New York is in hearty sym-
pathy with the present efforts of American authors, publishers, em-
ploying printers, and workmen in the printing trades to obtain from
Congress a just recognition of the rights of intellectual property, and
it hails with satisfaction the prospect of an early passage of the
International Copyright Bill.

ACTION OF THE CHICAGO COPYRIGHT LEAGUE.

Chicago, February 25, 1890.
Resolved, That this meeting unanimously indorses the efforts of
Congressman George E. Adams of Chicago toward securing the
enactment of the Chace-Breckinridge international copyright bill in
the United States House of Representatives, and urges upon Con-
gress the necessity for the immediate passage of said bill.

Among the supporters of this resolution were A.
C. McClurg, Franklin McVeagh, Joseph Kirkland,
David Swing, C. L. Hutchinson, Hobart C. Taylor,
Franklin H. Head, William F. Poole, Marshall
Field, Edward G. Mason, Slason Thompson, and
many others.

THE INTERNATIONAL COPYRIGHT ASSOCIATION OF
NEW ENGLAND.

The bill was indorsed as follows at the last annual
meeting of this association, composed of authors,
publishers, paper-makers, printers, book-binders, edu-
cators, jurists, professional men, merchants, bank-
ers, and others, including Charles Francis Adams,

INTERNATIONAL COPYRIGHT. 121

Nathan Appleton, Edward Atkinson, George
Bancroft, Edwin Booth, Samuel Bowles, Jonathan
Chace, James Freeman Clarke, Richard H. Dana,
Bancroft C. Davis, Samuel Adams Drake, Charles
W. Eliot, William Endicott, Jr., O. B. Frothing-
ham, Joseph R. Hawley, George F. Hoar, Oliver
Wendell Holmes, John D. Long, Henry Cabot
Lodge, Frederick Law Olmsted, Henry L. Pierce,
Noah Porter, Frederick O. Prince, Alexander H.
Rice, John C. Ropes, Francis A. Walker, and hun-
dreds of others.

Resolved, That this association approves the bill granting copy-
right to foreign authors and artists now before Congress, and warmly
urges its prompt passage, in the interest of the principles of equity
and justice and to the end that our own authors and artists may re-
ceive a proper recognition and reward for their works.

The Washington, D. C, association and leading
citizens of St. Louis have indorsed the bill in similar
terms.

CARDINAL GIBBONS ON COPYRIGHT.

Cardinal Gibbons has written the following let-
ter:

My Dear Sir : I desire to say that I am in entire sympathy with
those distinguished authors in the earnest efforts they are making to
secure from Congress an international copyright law.

Intellectual labor is the highest and noblest occupation of man,
and there is no work to the fruit of which a man has a higher claim
than to the fruit of mental labor. Many authors have reason to
complain in almost the words of the Gospel : " We have labored and
others have entered into our labors."

It seems to me eminently just that adequate protection should be

122 THE QUESTION OF COPYRIGHT.

afforded to authors, so as to secure them against what is conceived to
be a manifest violation of their rights.

I am, my dear sir, yours faithfully,

James, Card. Gibbons.
February 15, 1890.

Robert U. Johnson, Esq.,

Secretary American Copyright League.

AN AUTHORITATIVE VOICE FROM THE MEDICAL
PROFESSION.

January 20, 1S90.

Dear Sir : Perhaps few persons, certainly none in the medical
profession of this country, could show a record which would better
prove the need of an international copyright than could I. I once
pointed out to a member of Congress in my library, a copy of one of
my books translated into French, two translations of the same in Ger-
man, one in Russian, and another work of mine translated into
French. For none of these had I ever received a cent. It is true
that two of these translations were authorized by me when my con-
sent was asked, but, of course, it would not have been given without
some financial return to me if the law had been otherwise than it is,
since any one could at will take the book and translate it without the
slightest references to the wishes of the author. A great many Ameri-
can medical books have been translated into the European languages
with or without the assent of the authors, but I have never heard
that for any of these did our authors ever receive a penny. My own
case is, I fancy, the strongest, and I have no objection to your
printing this statement if it will further the purposes of the League.

Yours, very truly,

Weir Mitchell.

Secretary of Copyright League,

New York City.

THE OPINION OF A DISTINGUISHED CONSTITU-
TIONAL LAWYER.

Hon. George Ticknor Curtis, one of the earliest
and ablest advocates of an international copyright

INTERNATIONAL COPYRIGHT. 1 23

law, has written the following letter in support of

the pending bill :

114 East Thirtieth Street,

New York, April 18, 1890.

Dear Sir : . . . It seems to me, as an American author and
a citizen of the United States, in common with many other Ameri-
can authors and citizens, that our wishes ought to receive careful
attention at the hands of Congress. It is no longer possible to deny
the justice and expediency of an international copyright law, such
as is proposed in the pending bill. While it will benefit foreign, and
especially English, authors, to American authors it is certain to
operate as a measure that will secure to them fruits of their labors
which they are entitled to enjoy. I have myself failed to receive rev-
enue from publications that ought to have yielded me revenue in
England as well as in this country ; publications of which English
publishers have availed themselves without making me the slightest
remuneration. This wrong can be corrected by Congress for Ameri-
can authors in regard to future publication without the slightest dis-
advantage to readers, publishers, bookmakers, or printers, by passing
the pending bill.

I may not have personal influence with those who are to decide
this great measure of right and justice, but I feel that I have reason
to do everything I can in its favor.

Very truly, your obedient servant,

George Ticknor Curtis.

Robert U. Johnson, Esq.,

Secretary American Copyright League.

MR. GLADSTONE'S ATTITUDE.

Mr. Gladstone having been quoted by the op-
ponents of the international copyright bill, not only
as a partisan of the royalty or stamp copyright
scheme, which the friends of the bill strongly oppose,
but also as an opponent of the bill itself, the secre-
tary of the American Copyright League recently
addressed him a letter of inquiry on the subject, to
which the subjoined reply has been received :

124 THE QUESTION OF COPYRIGHT.

House of Commons Library, March 25, 1890.
My Dear Sir : I set so high a value upon the recognition by the
United States of the principle of international copyright, a principle
which has been now almost universally adopted in Europe, that al-
though I regret some of the provisions of the bill now before Con-
gress, I cannot refuse to express my sympathy with the efforts which
American authors have so perseveringly made to procure legal pro-
tection for the rights of foreign authors, and my hope that these
efforts maybe speedily crowned with success. Imperfect as the pres-
ent bill is, it will, if I rightly read its provisions, place both Ameri-
can and non-American authors in a more equitable position than
they have hitherto occupied.

It is quite erroneous to suppose that I have formed any opinion in
favor of the royalty scheme as against this bill.

I remain, my dear sir, faithfully yours,

W. E. Gladstone.
R. U. Johnson, Esq.,

Secretary American Copyright League.

THE MAGAZINES UNANIMOUS.

In response to a circular inquiry addressed to
forty leading monthly periodicals, the following
authorized the use of their names as strongly in
favor of the pending bill. Not one unfavorable
reply was received :

Atlantic Monthly. Forum.

Andover Review. Magazine of American History.

Art Amateur. Godey's Lady's Book.
American Journal of Education. Home-Maker.

Arena. Hall's Journal of Health.

Book-Buyer. Hamilton Review.

Belford's Magazine. Harper's Magazine.

Book Chat. Lippincott's Magazine.

Century Magazine. Lend a Hand.

Cosmopolitan. Lookout and New England Mag-
Current Literature. azine.

" Dixie." Northwest Magazine.

Dial. New England Magazine.

INTERNATIONAL COPYRIGHT.

125

New Englander and Yale Review. Popular Science Monthly.

No Name Magazine.

North American Review.

Our Country Home.

Outing.

Political Science Quarterly.

Frank Leslie's Weekly.

St. Louis Magazine.
Scribner's Magazine.
St. Nicholas.
Statesman.
Writer.

THE VOICE OF THE PRESS.

Following is a partial list of the American news-
papers and weekly periodicals which have given
the proposed copyright legislation cordial support.
Very many others are also known to favor it :

Boston Beacon.

Boston Congregationalism

Boston Advertiser.

Boston Journal.

Boston Journal of Education.

Boston Herald.

Boston National Journalist.

Boston Pilot.

Boston Post.

Boston Transcript.

Boston Traveller.

Zion's Herald (Boston).

New Haven (Conn.) News.

American Bookseller (New York),

American Economist (New York).

American Hebrew (New York).

Bradstreet's (New York).

Christian Union (New York).

Critic (New York).

Current Literature (New York).

Electrical World (New York).

Dramatic Mirror (New York).

Epoch (New York).

Evangelist (New York).

Examiner (New York).

Financier (New York).

Harper's Weekly (New York).

Home Journal (New York).

Independent (New York).

Life (New York).

Nation (New York).

Observer (New York).

Publishers' Weekly (New York).

Puck (New York).

Judge (New York).

Voice (New York).

Witness (New York).

New York Commercial Advertiser.

New York Courrier des Etats-

Unis.
New York Evening Post.
New York Evening Telegram.
New York Herald.
New York Morning Journal.
New York Mail and Express.
New York Press.
New York -Star.
New York Times.

126

THE QUESTION OF COPYRIGHT.

New York Tribune.

New York World.

Scranton (Pa.) Times.

Pottsville(Pa.) Evening Chronicle.

Bridgeport (Conn.) Standard.

Jersey City (N. J.) Evening Jour-
nal.

Newburyport (Mass.) Herald.

Springfield (Mass.) Republican.

Peoria (111.) Journal.

Newark (N. J.) Morning Press.

Dayton (Ohio) Herald.

Chattanooga (Tenn.) Republican.

Columbus (Ohio) Sunday Morning
News.

Springfield (Mo.) Dailyand Week-
ly Herald.

New York Financial Times.

Watkins (N. Y.) Herald.

Chicago National Journalist.

Brookville (Ind.) American.

Leoti (Kansas) Western Farmer.

Buffalo Courier.

Albany (N. Y.) Times.

Cincinnati (Ohio) Post.

Springfield (111.) Journal.

Milwaukee (Wis.) Evening Wis-
consin.

Burlington (Iowa) Hawk-Eye.

Lakewood (N. J.) Times and
Journal.

Memphis (Tenn.) Commercial.

Washington (D. C) National View.

Boston Courier.

Portland (Me.) Transcript.

Boston Commonwealth.

Buffalo Mercantile Review.
Dayton (Ohio) Journal.
New York Electrical Review.
Cambridge (Mass.) Press.

Greenfield (Mass.) Gazette and
Courier.

Buffalo Milling World.

Buffalo Lumber World.

Buffalo Iron Industry Gazette.

New York Family Story Paper.

New York Golden Hours.

New Hampshire (Keene, N. H.)
Sentinel.

Binghamton (N. Y.) Republican.

Jamestown (N. Y.) Journal.

Greensburg (Pa.) Press.

Des Moines (Iowa) Iowa State
Register.

Cambridge (Mass.) Tribune.

Cambridge (Mass.) Chronicle.

Columbus (Ga.) Inquirer.

Boston Youths' Companion.

Rochester (N. Y.) Union and Ad-
vertiser.

Newark (N. J.) Sunday Call.

Memphis (Tenn.) Sunday Times.

Brooklyn Standard Union.

Kingston (N. Y.) Freeman.

Little Falls (N. Y.) Times.

Rochester Post-Express.

American Rural Home(Rochester.)

Erie (Pa.) Herald.

Erie (Pa.) Morning Dispatch.

Friends' Intelligencer and Journal
(Philadelphia).

Golden Days (Philadelphia).

National Baptist (Philadelphia).

Telephone (Philadelphia).

Philadelphia Inquirer.
Philadelphia North American.

Philadelphia Press.
Philadelphia Public Ledger.
Watertown (N. Y.) Times.

Williamsport (Pa.) Sun.

INTERNATIONAL COPYRIGHT.

127

Pittsburgh (Pa.) Commercial Ga-
zette.

New Bedford (Mass.) Daily Mer-
cury.

New London (Conn.) Morning
Telegraph.

Newark (N. J ) Daily Advertiser.

Lowell (Mass.) Daily Courier.

Baltimore (Md.) Sun.

Paterson (N. J.) Press.

Wilmington (Del.) Every Evening.

Haverhill (Mass.) Gazette.

Bridgeport (Conn.) Farmer.

Harrisburg (Pa.) Morning Call.

Pittsfield (Mass.) Evening Journal.

Waterbury (Conn.) American.

Utica (N. Y.) Daily Press.

Philadelphia Record.

Omaha (Nebr.) Republican.

Buffalo Tidings.

Baltimore Telegram.

Winona (Minn) Daily Republican.

Davenport (Iowa) Democrat.

Mandan (N. Dak.) Pioneer.

Hartford (Conn ) Courant.

Willimantic (Conn.) Journal.

New Haven (Conn.) Register.

Our Youth (New York).

New Orleans (La) Daily City Item.

St. Joseph (Mo.) Daily News.

Redfield (S. Dak.) Observer.

Belfast (Me.) Republican Journal.

Portsmouth (N. H.) Daily Prog-
ress.

Portland (Me ) Sunday Times.

Providence (R. I.) Telegram.

Hudson (N. Y ) Daily Register.

Omaha (Nebr.) Bee.

Pittsburgh (Pa.) Dispatch.

Wilkesbarre (Pa.) Record.

Public Opinion (Washington, D.C.).

Kate Field's Washington.

Washington (D. C.) Critic.

Washington (D. C.) Evening Star.

Richmond Times.

West Point (Va.) Virginian.

Danville (Va.) Times.

Wheeling (W. Va.) Letter.

Charleston (S. C.) News and
Courier.

Charleston (S. C.) World.

Columbia (S. C.) Register.

Atlanta (Ga.) Constitution.

Augusta (Ga.) Chronicle.

Macon (Ga.) Telegraph.

New Orleans Times-Democrat.

Dallas (Tex.) Christian Advocate.

Fort Worth (Tex.) Gazette.

Houston (Tex.) Post.

Louisville Courier-Journal.

National Publisher and Printer
(Louisville).

Memphis (Tenn.) Avalanche.

Cumberland Presbyterian (Nash-
ville).

Gospel Advocate (Nashville).

Western Christian Advocate (St.
Louis).

St. Louis Republican.

Cleveland Leader.

Baptist Journal and Register (Cin-
cinnati).

Cincinnati Commercial Gazette.

Jackson (Ohio) Herald.

Indianapolis Journal.

Indianapolis Sentinel.

America (Chicago).

Christian Worker (Chicago).

Chicago Journal.

Chicago Journal of Commerce.

128

THE QUESTION OF COPYRIGHT.

Chicago News.
Chicago Standard.
Chicago Times.
Chicago Indicator.
Chicago Evening Mail.
Chicago Occident.
Galena (111.) Press.
Harvard (111.) Independent.
Clearwater (Minn.) Sun-Wave.
Uuluth (Minn.) Tribune.
Minneapolis Journal.
Minneapolis Tribune.
St. Paul Pioneer Press.
Cedar Rapids (Iowa) Republican.
Des Moines (Iowa) Leader.
Burlington (Kansas) Republican.
Wichita Eagle.
Denver (Colo.) Republican.
Denver (Colo.) Times.
Banning (Cal.) Herald.
Oakland (Cal.) Tribune.
Sacramento (Cal.) Record-Union.
San Francisco News Letter.
Seattle (Wash.) Journal.
Seattle (Wash.) Post Intelligencer.
Troy (N. Y.) Observer.
Philadelphia(Pa) Taggarts' Times.
Detroit (Mich.) Journal.
Chelsea (Mass.) Gazette.
Springfield (Mass.) New England

Homestead.
Springfield (Mass.) Farm and

Home.
Springfield (Mass.) Springfield

Homestead.
New York American Agriculturist.
Newton (Mass.) Journal.
The Banner Weekly (New York).
Syracuse (N. Y.) Standard.
Norwalk (Conn.) Hour.

Red Wing (Minn.) Republican.

Wilmington (Del.) Sunday Star.

Bradford (Pa.) Era.

Pittsburgh (Pa.) Post.

Wall Street (N. Y.) Daily News.

Hartford (Conn.) Evening Post.

Cape Cod (Yarmouthport, Mass.)
Item.

Birmingham (Ala.) Age-Herald.

Dead wood (S. Dak.) Pioneer.

Syracuse (N. Y.) Herald.

Vicksburg (Miss.) Post.

Duluth (Minn.) Herald.

Mt. Joy (Pa.) Herald.

Merchants and Manufacturers'
Journal (Baltimore).

Salt Lake Herald.

Sioux Falls (S. Dak.) Argus-
Leader.

Munsey's Weekly (New York).

Portland (Me.) Press.

Portland (Me.) Express.

Staunton (Va.) Spectator.

Tarboro (N. C.) Southerner.

Bloomington (111.) Leader.

New Albany (Ind.) Ledger.

Kentucky State Journal (New-
port, Ky.).

Bismarck (N. Dak.) Tribune.

Chicago Citizen.

Lafayette (Ind.) Sunday Times.

Wilson (N. C.) Advance.

Arkansaw Traveler (Chicago).

Spirit of the Valley (Harrison-
burgh, Va.).

Paris (Texas) News.

St. Louis (Mo.) Age of Steel.

St. Louis (Mo.) Critic.

Anniston (Ala.) Hot Blast.

Henderson (Ky.) Gleaner.

INTERNATIONAL COPYRIGHT. 129

Colorado Springs Gazette. Northern Christian Advocate

Leadville (Colo.) Evening Chron- (Syracuse, N. Y.).

icle. The Churchman (New York).

Leadville (Colo.) Herald-Demo- Cincinnati Journal and Messen-

crat. ger.

Buffalo Christian Advocate. Troy (N. Y.) Catholic Weekly.

Topeka (Kans.) Lance. Racine (Wis.) Slavie.

Spokane Falls (Wash.) Review. Winston (N. C.) Western Sentinel.
Rhode Island Democrat (Provi- Boston Morning Star.

dence, R. I.). Notre Dame (Ind.) Ave Maria.

Christian Intelligencer (New Virginia City (Nev.) Evening

York). Chronicle.

Weekly Union and Catholic Times New London (Conn.) Day.

(New York). St. Louis (Mo.) Spectator.

Woman's Journal (Boston). Prescott (Arizona) Journal-Miner.

RECAPITULATION.

The intelligent voice of the whole country asks
for the passage of a measure substantially the same
as this ; authors, publishers, printers, musical com-
posers, colleges, educators, librarians, newspapers,
and magazines join in the prayer. Clay and Web-
ster favored such a thing in the past ; Gladstone,
Harrison, Cleveland, and Cardinal Gibbons favor it
to-day. Our term of copyright is shorter than that
sanctioned by the verdict of the civilized world.

Substantially all the world, except Great Britain
and the United States, treat foreigner and citizens
alike in the matter of copyright ; Great Britain per-
mits copyright to foreigners on the same basis as
citizens, if the foreigner be at the time of publication
on British soil ; the Queen is empowered by law to
establish reciprocity with us if we will permit it,
and we stand alone in rejecting and refusing over-
tures. A hundred international copyright agree-

ISO THE QUESTION OF COPYRIGHT.

ments have been signed ; the name of the United
States is in no one of them.

It is shown that an author has a natural exclusive
right to his intellectual productions : that the com-
mon law of England always recognized that right,
and that the common law of America necessarily
recognizes that right ; that our present procedure
represses authorship by putting the products of the
labor of American authors into untrammeled com-
petition with the products of English labor, for
which nothing is paid ; that our present procedure
deprives American authors of the advantages of the
British market ; that our present procedure vitiates
the education and tastes of American youth ; that
our present procedure bars our people from the
benefits of the good literature of England, and that
our present procedure prevents the cheapening of
good and desirable books in the United States. It
cannot be possible that the American Congress will,
with full knowledge, permit the present procedure
to continue.

VIII.

THE PLATT-SIMONDS COPYRIGHT ACT,
OF MARCH, 1891.

An Act to amend Title Sixty, Chapter Three, of the Revised
Statutes of the United States, Relating to Copyrights.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section forty-
nine hundred and fifty-two of the Revised Statutes be, and the same
is hereby, amended so as to read as follows :

" Sec. 4952. ' The author, inventor, designer, or proprietor of any
book, map, chart, dramatic or musical composition, engraving, cut,
print, or photograph or negative thereof, or of a painting, drawing,
chromo, statue, statuary, and of models or designs intended to be
perfected as works of the fine arts, and the executors, administrators,
or assigns of any such person shall, upon complying with the pro-
visions of this chapter, have the sole liberty of printing, reprinting,
publishing, completing, copying, executing, finishing, and vending
the same ; and, in case of dramatic composition, of publicly per-
forming or representing it or causing it to be performed or repre-
sented by others ; and authors or their assigns shall have exclusive
right to dramatize and translate any of their works for which copy-
right shall have been obtained tinder the laws of the United States."

Sec. 2. That section forty-nine hundred and fifty-four of the
Revised Statutes be, and the same is hereby, amended so as to read
as follows :

" Sec. 4954. The author, inventor, or designer, if he be still liv-
ing,2 or his widow or children, if he be dead, shall have the same
exclusive right continued for the further term of fourteen years,

1 Omits: " Any citizen of the United States or resident therein,
who shall be "

2 Omits ; " And a citizen of the United States or resident therein,"

132 THE QUESTION OF COPYRIGHT.

upon recording the title of the work or description of the article so
secured a second time, and complying with all other regulations in
regard to original copyrights, within six months before the expiration
of the first term ; and such persons shall, within two months from
the date of said renewal, cause a copy of the record thereof to be
published in one or more newspapers printed in the United States
for the space of four weeks."

Sec. 3. That section forty-nine hundred and fifty-six of the Revised
Statutes of the United States be, and the same is hereby, amended
so that it shall read as follows :

" Sec. 4956. No person shall be entitled to a copyright unless he
shall, on or before the day of publication in this or any foreign coun-
try, deliver at the office of the Librarian of Congress, or deposit in
the mail within the United States, addressed to the Librarian of
Congress, at Washington, District of Columbia, a printed copy of
the title of the book, map, chart, dramatic or musical composition,
engraving, cut, print, photograph, or chromo, or a description of
the painting, drawing, statue, statuary, or a model or design for a
work of the fine arts for which he desires a copyright, nor unless he
shall also, not later than the day of the publication thereof in this or
any foreign country, deliver at the office of the Librarian of Con-
gress, at Washington, District of Columbia, or deposit in the mail
within the United States, addressed to the Librarian of Congress, at
Washington, District of Columbia, two copies of such copyright
book, map, chart, dramatic or musical composition, engraving,
chromo, cut, print or photograph* or in case of a painting, drawing,
statue, statuary, model, or design for a work of the fine arts, a pho-
tograph of the same : Provided, That in the case of a book, photo-
graph, chromo, or lithograph, the two copies of the same required to be
delivered or deposited as above shall be printed fro?n type set within
the limits of the United States, or from plates made therefrom, or
from negatives, or drawings on stone made within the limits of the
United States, or from transfers made therefrom. During the exist-
ence of such copyright the importation into the United States of any
book, chromo, lithograph, or photograph, so copyrighted, or any edition
or editions thereof, or any plates of the same not made from type set,
negatives, or drawings on stone made within the limits of the United
States, shall be, and it is hereby, prohibited, except in the cases specified
in paragraphs 512 to 516 inclusive, in sectio7i 2 of the act entitled

1 These words replace the words " or other article,"

THE ACT OF MARCH, 189I. 1 33

'An act to reduce the revenue and equalize the duties on imports and
for other purposes? approved Oct. 1, 1890 ; and except in the case of
persons purchasing for use and not for sale, who import subject to the
duty thereon, not more than two copies of such book at any one time ;
and except in the case of newspapers and magazines, not containing in
whole or in part matter copyrighted tinder the provisions of this act,
unauthorized by the author, which are hereby exempted from prohibi-
tion of importation : Provided, nevertheless, That in the case of boohs
in foreign languages, of which only translations in English are copy-
righted, the prohibition of importation shall apply only to the transla-
tion of the same, and the importation of the boohs in the original
language shall be permitted,"

Sec. 4. That section forty-nine hundred and fifty-eight of the
Revised Statutes be, and the same is hereby, amended so that it will
read as follows :

" Sec. 4958. The Librarian of Congress shall receive from the
persons to whom the services designated are rendered the following
fees :

" First. For recording the title or description of any copyright
book or other article, fifty cents.

" Second. For every copy under seal of such record actually given
to the person claiming the copyright, or his assigns, fifty cents.

"Third. For recording and certifying any instrument of writing
for the assignment of a copyright, one dollar.

" Fourth. For every copy of an assignment, one dollar.

" All fees so received shall be paid into the Treasury of the United
States : Provided, That the charge for recording the title or descrip-
tion of any article entered for copyright, the production of a person
not a citizen or resident of the United States, shall be one dollar, to be
paid as above into the Treasury of the United States, to defray the
expenses of lists of copyrighted articles as hereinafter provided for.

"And it is hereby made the duty of the Librarian of Congress to
furnish to the Secretary of the Treasury copies of the entries of titles
of all books and other articles wherein the copyright has been com-
pleted by the deposit of two copies of such book printed from type set
within the limits of the United States, in accordance with the provis-
ions of this act and by the deposit of two copies of such other article
made or produced in the United States ; and the Secretary of the
Treasury is hereby directed to prepare and print, at intervals of not
more than a week, catalogues of such title-entries for disttibution to

134 THE QUESTION OF COPYRIGHT.

the collectors of customs of the United States and to the postmasters
of all post-offices receiving foreign mails, and such weekly lists, as
they are issued, shall be furnished to all parlies desiring them, at
a sum not exceeding five dollars per annum ; and the Secretary and
the Postmaster-General are hereby empowered and required to make
and enforce such rules and regulations as shall prevent the importa-
tion into the United States, except upon the conditions above specified,
of all articles prohibited by this act."

Sec. 5. That section forty-nine hundred and fifty-nine of the
Revised Statutes be, and the same is hereby, amended so as to read
as follows :

" Sec. 4959. The proprietor of every copyright book or other
article shall deliver at the office of the Librarian of Congress, or
deposit in the mail, addressed to the Librarian of Congress, at
Washington, District of Columbia,1 a copy of every subsequent edi-
tion wherein any substantial changes shall be made : Provided, how-
ever, That the alterations, revisions, and additions made to books by
foreign authors, heretofore published, of 7vhich new editions shall
appear subsequently to the taking effect of this act, shall be held and
deemed capable of being copyrighted as above provided for in this act,
unless they form a part of the series in course of publication at the
time this act shall take effect."

Sec. 6. That section forty-nine hundred and sixty-three of the Re-
vised Statutes be, and the same is hereby, amended so as to read as
follows :

" Sec. 4963. Every person who shall insert or impress such
notice, or words of the same purport, in or upon any book, map,
chart, dramatic, or musical composition, print, cut, engraving, or
photograph, or other article, for which he has not obtained a copy-
right, shall be liable to a penalty of one hundred dollars, recoverable
one-half for the person who shall sue for such penalty and one-half
to the use of the United States."

Sec. 7. That section forty-nine hundred and sixty-four of the
Revised Statutes be, and the same is hereby, amended so as to read
as follows :

"Sec. 4964. Every person, who after the recording of the title

1 Omits : " within ten days after its publication, two complete
printed copies thereof, of the best edition issued, or description or
photograph of such article as hereinbefore required, and "

THE ACT OF MARCH, 189I. 135

of any book and the depositing of two copies of such book, as pro-
vided by this act, shall, contrary to the provisions of this act, within
the term limited, and without the consent of the proprietor of the
copyright first obtained in writing, signed in presence of two or
more witnesses, print, publish, dramatize, translate, or import, or
knowing the same to be so printed, published, dramatized, translated,
or imported, shall sell or expose to sale any copy of such book, shall
forfeit every copy thereof to such proprietor, and shall also forfeit
and pay such damages as may be recovered in a civil action by such
proprietor in any court of competent jurisdiction."

Sec. 8. That section forty-nine hundred and sixty-five of the
Revised Statutes be, and the same is hereby, so amended as to read
as follows :

" Sec. 4965. If any person, after the recording of the title of
any map, chart, dramatic or musical composition, print, cut, engrav-
ing, or photograph, or chromo, or of the description of any painting,
drawing, statue, statuary, or model or design intended to be per-
fected and executed as a work of the fine arts, as provided by this
act, shall within the term limited, contrary to the provisions of this act,
and without the consent of the proprietor of the copyright first ob-
tained in writing, signed in presence of two or more witnesses, en-
grave, etch, work, copy, print, publish, dramatize, translate, or
import, either in whole or in part, or by varying the main design
with intent to evade the law, or, knowing the same to be so printed,
published, dramatized, translated , or imported, shall sell or expose
to sale any copy of such map or other article as aforesaid, he shall
forfeit to the proprietor all the plates on which the same shall be
copied and every sheet thereof, either copied or printed, and shall
further forfeit one dollar for every sheet of the same found in his
possession, either printing, printed, copied, published, imported,
or exposed for sale, and in case of a painting, statue, or statuary,
he shall forfeit ten dollars for every copy of the same in his pos-
session, or by him sold or exposed for sale ; one-half there-
of to the proprietor and the other half to the use of the United
States."

Sec. 9. That section forty-nine hundred and sixty-seven of the
Revised Statutes be, and the same is hereby, amended so as to read
as follows :

" Sec. 4967. Every person who shall print or publish any manu-
script whatever without the consent of the author or proprietor first

I36 THE QUESTION OF COPYRIGHT.

obtained,1 shall be liable to the author or proprietor for all damages
occasioned by such injury."

Sec. 10. That section forty-nine hundred and seventy-one of the
Revised Statutes be, and the same is hereby, repealed.2

Sec. 11. That for the purpose of this act each volume of a book
in two or more volumes, when such volumes are published separately
and the first one shall not have been issued before this act shall take
effect, and each number of a periodical shall be considered an inde-
pendent publication, subject to the form of copyrighting as above.

Sec. 12. That this act shall go into effect on the first day of July,
anno Domini eighteen hundred and ninety-one.

Sec. 13. That this act shall only apply to a citizen or subject of a
foreign state or nation when such foreign state or nation permits to
citizens of the United States of America the benefit of copyright on
substantially the same basis as its own citizens ; or when such foreign
state or nation is a party to an international agreement which provides
for reciprocity in the granting of copyright, by the terms of which
agreement the United States of America may, at its pleasure, become a
party to such agreement. The existence of either of the conditions
aforesaid shall be determined by the President of the United States by
proclamation made from time to time as the purposes of this act may
require.

The following are the sections of the Tariff act
bearing on the bill ;

512. Books, engravings, photographs, bound or unbound, etch-
ings, maps, and charts, which shall have been printed and bound or
manufactured more than twenty years at the date of the importation.

513. Books and pamphlets printed exclusively in languages other
than English ; also books and mnsic in raised print, used exclusively
by the blind.

514. Books, engravings, photographs, etchings, bound or un-

1 Omits : " if such author or proprietor is a citizen of the United
States, or resident therein,"

5 Sec. 4971 is as follows : " Nothing in this chapter shall be con-
strued to prohibit the printing, publishing, importation, or sale of
any book, map, chart, dramatic or musical composition, print, cut,
engraving, or photograph, written, composed or made by any person
not a citizen of the United States nor resident therein."

THE ACT OF MARCH, 189I. I37

bound, maps and charts imported by authority or for the use of the
United States, or for the use of the Library of Congress.

515. Books, maps, lithographic prints and charts especially im-
ported, not more than two copies in any one invoice in good faith,
for the use of any society incorporated for educational, philosophical,
literary, or religious purposes, or for the encouragement of the fine
arts, or for the use or by order of any college, academy, school, or
seminary of learning in the United States, subject to such regulations
as the Secretary of the Treasury shall prescribe.

516. Books, or libraries, or parts of libraries and other household
effects of persons or families from foreign countries, if actually used
by them not less than one year, and not intended for any other per-
son or persons, nor for sale.

(In the text as above given, the changes from the existing law are
printed in italics, and the omissions are specified in the foot-notes.)

Note. — Section 4953 of the Revised Statutes, which prescribes
twenty-eight years as the first term of copyright, being left unchanged,
is not given in the present act. For its wording, see text of the
Act of 1870, p. 108.

IX.

ANALYSIS OF THE PROVISIONS OF
THE COPYRIGHT LAW OF 1891.

The purport of the Chace-Breckinridge-Adams-
Simonds-Platt Copyright Act may be briefly sum-
marized as follows :

A. — Works of Literature.

1. Copyright is granted to authors, whether res-
ident or non-resident, for a term of twenty-eight
years. A further term of fourteen years (making
forty-two years in all) is granted to the author if at
the expiration of the first term he is still living, or
to his widow or children if he be dead. Unless the
author survive the first term or leave widow or
children, the copyright is limited to twenty-eight
years.

2. It is made a condition of such copyright for
all authors, whether resident or non-resident, that
all the editions of the works so copyrighted must
be entirely manufactured within the United States;
the term including the setting of the type, as well
as the printing and binding of the books.

This provision was instituted in the new act at the
instance of the Typographical Unions, and was in-
sisted upon by them as essential. The Unions were

ANALYSIS OF THE COPYRIGHT LAW OF 1 89 1. 1 39

under the apprehension that if international copy-
right should be established without such condition
of American manufacture, a large portion of the
book manufacturing now done in this country would
be transferred across the Atlantic, to the injury of
American type-setters and printers, and of the other
trades employed in the making of books.

3. For a non-resident author, the further condi-
tion is attached to his American copyright that the
country of which he is a citizen shall concede to
American authors copyright privileges substantially
equal to those conceded by such foreign state to
its own authors.

4. It is also made a condition (applying to both
resident and non-resident authors) that the book
securing American copyright shall be published in
the United States not later than the date of its pub-
lication in any other country. Under the British
act now in force, the works of British authors must,
in order to preserve their British copyright, be pub-
lished in Great Britain not later than the date of
their publication in any other country. It will,
therefore, be necessary for English authors to make
arrangements with their English and American pub-
lishers for a simultaneous date of publication for
both sides of the Atlantic.

With the present facilities for the manifolding
and typewriting of manuscripts, for the transmit-
ting across the Atlantic in a week's time advance
proofs or advance sheets, and for making final
arrangements by cable, there need be, for the great
majority of books likely to be reprinted, no material

I4-0 THE QUESTION OF COPYRIGHT.

difficulties in the way of securing this simultaneous
publication.

The provision was believed by many to be an
essential part of the condition that all editions of
books securing an American copyright must be
manufactured in this country. It was argued
that, if a term of twelve months or of six months
were to be allowed to a foreign author within
which to complete arrangements for his American
editions, the importation of the foreign editions
during such term must be either prohibited or
permitted. In the former case, American readers
might, for an indefinite period, be prevented from
securing any copies at all of new English books, a
delay which would certainly bring about popular
indignation. In the second case, the American
market could be to some extent supplied with Eng-
lish editions before any American editions were in
readiness, and by the time the English author was
ready to sell his American copyright, he would find
that such copyright possessed very little market
value.

The status of the foreign book during such inter-
regnum must in any case be an anomalous one, and
would be likely to cause complications.

The assertion has been made that the provision
for simultaneous publication was inserted by the
publishers with the malicious purpose of prevent-
ing the less known British authors, who might not
be in a position to make advance arrangements for
their American editions, from securing under the
act any American copyright.

ANALYSIS OF THE COPYRIGHT LAW OF 189I. 141

It is evident, however, that the publishers who
were interested in framing the bill were not ac-
tuated by any such Machiavellian intentions. It
had been made clear that international copyright
was expected to prove a business advantage to all
the legitimate publishers engaged in reprinting
English books, for the simple reason that larger
profits could be secured by controlling the market
for authorized editions (even when these were sold
at the lowest popular prices) than by dividing the
market with a number of unauthorized editions.
This being the case, it was of course to the interest
of the publishers to secure the protection of Ameri-
can copyright for as many foreign works as possible,
and the throwing over of any books to the un-
authorized reprinters would entail loss upon pub-
lishers as well as upon authors.

It was, however, the belief of the publishers, in
accepting this provision with the other typograph-
ical conditions, that there need be no difficulty in
arranging to protect the works of new authors as
well as those of the well-known writers.

It seems probable, also, taking into account all
the considerations, that the provision for simultane-
ous publication is unavoidable as long as the other
restrictions in the act are retained. When these can
be spared, the International Copyright Law of the
United States can properly be brought under the
provisions of the Berne Convention.

5. The regulations previously in force for making
the entries of copyright are continued, and two
copies of the book, together with one copy of its

1^2 THE QUESTION OF COPYRIGHT.

printed title-page, are to be delivered, on or before
the day of publication, at the office of the Librarian
of Congress, together with a fee for the entry of the
title, such fee being, in the case of an American
author, fifty cents, and in the case of a foreign
author one dollar.

6. While the importation, during the existence of
the American copyright, of editions of the books so
copyrighted, whether the authors of the same be
American or foreign, is prohibited, the importation
of such books is permitted to the extent of not to
exceed two copies in any one invoice, said copies
being certified to be " for use and not for sale."
Buyers of foreign books which have secured an
American copyright, who may prefer for their libra-
ries the foreign editions of such books, are, under
this provision, enabled to import, either direct or
through an importer, not to exceed two copies of
such editions. This provision apparently permits the
importation (not exceeding two copies in any one
shipment) of unauthorized as well as of authorized
foreign editions of books which have been copy-
righted in the United States.

7. Foreign periodicals of which there are no
American editions " printed from type set in the
United States," cannot secure for their contents an
American copyright. The importation of such peri-
odicals is left unrestricted, except for such numbers
as may contain unauthorized reprints of material
which has already in some other form secured an
American copyright.

An English author who copyrights and publishes

ANALYSIS OF THE COPYRIGHT LAW OF 189I. 143

in the United States a volume, some chapters of
which have previously been printed in an English
magazine, will probably not be in a position to pre-
vent the reprinting in the United States of an un-
authorized issue of the material contained in such
chapters. For this portion of his volume no Amer-
ican copyright can, under the present act, be secured.
In case all the chapters in the volume have already
appeared in a foreign periodical, its American copy-
right has probably been forfeited.

8. For the purpose of enforcing the prohibition
of the importation of editions of books securing
American copyright, weekly lists of the books of
which the copyright has been completed are to be
furnished by the Librarian of Congress to the
Secretary of the Treasury, and by the Secretary to
the various customs officers concerned.

The non-importation provision makes the status
of books by foreign authors, which have secured an
American copyright, practically identical with that
heretofore in force for copyrighted American works,
the importation of foreign editions of which has
of necessity always been prohibited. The whole
theory of copyright rests on the exclusive control
by the author of a specific territory. An author to
whom, under domestic or international law, such a
control has been conceded, has something to sell
for which he can convey a clear title, and for which,
therefore, he is in a position to secure a price rep-
resenting the full market value of his production.
An author who can convey to his publisher, in place
of an exclusive territory, only the right to compete

144 THE QUESTION OF COPYRIGHT.

with an indefinite number of other publishers of the
same work, has no real " copyright " to sell, and the
compensation that he can secure will be of necessity
comparatively inconsiderable.

The so-called Sherman amendment, which was
discussed at some length during the consideration
of the present act, authorized the importation of
foreign editions of works by foreign authors securing
American copyright. It was finally rejected on the
several grounds: that it was incompatible with the
other sections of the act, which provided for the
American manufacture of all books securing Ameri-
can copyright ; that it was inconsistent with the
purpose of the act to place on a uniform status all
books copyrighted here, whether of American or
foreign origin ; and that it was inconsistent with the
essential condition of " copyright," which stands for
an exclusive right to the " copy " for a specific ter-
ritory and for a specific term. The opponents of
the amendment cited, as an instance of territorial
copyright, the case of the authorized Tauchnitz and
Asher editions of the books of British authors,
which, while copyright on the continent, would, if
imported into Great Britain, be infringements, and
the importations of which into Great Britain had,
therefore, always been prohibited.

The Sherman amendment, in its original form,
authorized the importation of foreign editions of
books by American as well as by foreign authors, and
did not even stipulate for the permission of the
authors; and in this form it would of necessity have
rendered null and void domestic as well as inter-

ANALYSIS OF THE COPYRIGHT LAW OF 189I. 145

national copyright. While such a result was doubt-
less not the intention of the mover, Senator Sher-
man of Ohio, or of Senators Hale, Plumb, Carlisle,
Daniels and the others who supported him, this
original amendment was actually carried in the
Senate by a vote of 25 to 24. It was rescinded
three days later, after its actual purport had been
made clear by outside criticism. In its corrected
shape, in which it authorized the importation of
foreign editions of books by foreign authors only,
it was finally defeated by the vote of 21 to 28. The
whole episode was a noteworthy instance of slovenly
and hap-hazard legislation.

9. The foreign author possesses under the act the
same control over translations of his books as has
previously been possessed by the American author,
and such translations can hereafter be issued only
under his authorization. This provision gives,
namely, to German and French authors the control
of the issue in this country of English versions of
their books, and to English authors a similar control,
not only over a reprint in English, but over one
made, for instance, in German. There is, however,
no prohibition of the importation of an edition of a
book printed in a language other than that in which
it has secured its American copyright.

B.— Works of Art.

Foreign artists and designers are accorded the
same term or terms of copyright as those given to
foreign authors (and to domestic artists).

The condition of American manufacture is at-
tached to the copyright of reproductions in the

146 THE QUESTION OF COPYRIGHT.

form of chromos, lithographs, or photographs.
American manufacture was, however, not made a
condition of the more artistic forms of reproduc-
tions, and foreign artists are, therefore, now in a
position to control the American copyright of en-
gravings or photogravures of their productions,
whether these engravings, etc., are " manufactured "
in Europe or in the United States. This provision
is held by the artists and art publishers of France,
who have in the past years suffered severely from
American " appropriations " of their productions,
to be of special importance.

C. — Music.

Musical compositions by foreign composers are
accorded the same terms of American copyright as
those given to American compositions, and for pro-
ductions of this class American manufacture is not
made a condition of the copyright.

The condition of reciprocity applies to the copy-
right of both music and art.

The act goes into effect July 1st, 1891, but its
provisions become actually operative between the
United States and any foreign state only when the
president has made announcement, by proclama-
tion, that the necessary conditions of reciprocity
have been fulfilled by such state.

The above suggestions concerning the purpose
and probable operation of the provisions of the new
act are submitted with all deference to the opinions
of better authorities, and will very probably be
subject to correction in one respect or another after

ANALYSIS OF THE COPYRIGHT LAW OF 189I. 147

the act has come into effect. It is very probable
that some questions will arise which cannot be def-
initely settled without the interpretation of the
courts.

G. H. P.

March 25, 1891.

EXTRACTS FROM THE SPEECHES OF
SENATORS PLATT AND EVARTS,
IN THE COPYRIGHT DEBATE IN
THE SENATE.

February 10, 1891. — Mr. Platt, in calling up
the Copyright Bill, said : " Mr. President, I do
not wish to take the time of the Senate in any
lengthy explanation of this bill. We have now
waited fifty-three years for this moment, when an
international copyright law could be enacted. Fif-
ty-three years ago, Henry Clay made a report which,
in the estimation of thoughtful men, thoroughly
demonstrated not only the expediency, but the
duty of extending the right of copyright to foreign-
ers by the passage of an international copyright law.

" I will simply say that the bill proceeds upon one
broad fundamental principle, and that is that what
a man fashions by his brain, his genius, his imagina-
tion, or his ingenuity is property, just as much
as what he fashions by his hands, or acquires by
manual or other labor; and that, being property, it
should be property the world over, and should be
recognized as such. If an American writes a book,
the right to publish that book should be recognized
as property not only in this country, as it now is
under the Constitution, but as property everywhere.
If a citizen of another country writes a book, the

EXTRACTS FROM SPEECHES. I49

right to publish that book should be as much
property in this country as in his own country.

" That is the broad principle on which this bill
rests — the protection of property, for which gov-
ernments are instituted. The principle has been
recognized in the case of patents, and not a little of
the growth and prosperity of the country is due to
the fact of the recognition by this government, that
a foreigner who invents a new machine or discovers
a new process shall be entitled to secure a patent
for the same in this country.

" The Constitution puts authors first, in saying
that Congress may secure to them exclusive rights ;
it puts them before inventors ; but the legislation
of the country has extended the provisions of the
Constitution in the matter of inventions very much
further than it has in the matter of authorship, and
those who come in under the generic term of
authors.

" I believe myself no measure before this Congress
is so calculated to enhance not only the intellectual,
but the material growth of this country, as this
copyright bill, and I trust it will pass without
amendment.

" As I said, we have waited fifty-three years for
this opportunity, and this opportunity may be
wholly lost if at this time amendments should be
pressed in the Senate.

" I do not know that I should call this a perfect
bill, but it is a bill which has had long considera-
tion by committees of the Senate and of the House
of Representatives. It comes to us from the House,

I50 THE QUESTION OF COPYRIGHT.

and now is our opportunity to obtain the passage of
such a law. If there is anything in it which needs
further examination, which would call for further
legislation, the way for the people who desire
international copyright to obtain it is to pass this
bill while we have the opportunity to pass it, and to
establish the principle of copyright in this country
for aliens, and copyright in Europe for Americans.
Then, if the provisions of the act may be found to
need modification, you can trust to the future that
justice will be done." . . .

February 14. — Mr. Piatt said (replying to Mr.
Allison and Mr. Sherman) :

. . . " The fundamental idea of a copyright
is the exclusive right to vend, and the prohibition
against importation from a foreign nation is neces-
sary to the enjoyment of that right. It is the right
to vend within the country where the copyright
is granted that gives value to the work of the
author. . . .

" I was saying that the very essence of copyright
is the privilege of controlling the market. That is
the only way in which it can be reached ; it is the
only way in which the right can be vindicated ; it is
the only way in which a man's property in the work
of his brain, or his imagination, or his genius, can be
assured. I am sorry to say that I apprehend a good
deal of this contention arises from the lack of a
desire to protect a man in that species of property ;
and I am afraid the idea, so prevalent, and so in-
creasing in the country in these days, that property
rights generally are not so very sacred, has to

EXTRACTS FROM SPEECHES. 151

some extent affected the consideration of this sub-
ject.

" Of course the right is exclusive. It is exclusive
in this country under our laws, and it is exclusive in
every country which has copyright of any kind,
national or international. The man who has a
copyright in England, and also in Germany, cannot
import his books from Germany into England, or
his engravings from Germany into England, unless
he be the proprietor in England of the copyright ;
nor can the English proprietor of the copyright
export his books, his engravings, or whatever be the
subject of his copyright into Germany unless he is
the proprietor of the copyright in both countries.

" There, of course, the consent of the proprietor
is not required ; but without the consent of the
proprietor of the copyright, whether he be the
publisher himself, or whether the person to whom
the author has transferred his right is the publisher,
exportation and importation are prohibited. The
right is exclusive, and it must be. It is in the
essential nature and characteristic of the property
that it should be thus protected. Why should not
a man's property in his work be protected ? Why
should anybody want to import from a foreign
country a work when the United States has given
to the person of this country its sole market for the
work ?

" Mr. President, I insist that geographical divis-
ions ought not in any way to affect the question of
copyright. Having once laid the foundation, that
it rests upon the essential and inherent right of a

152 THE QUESTION OF COPYRIGHT.

man to be protected in his property, it does not
make any difference whether the owner of it be an
American or a foreigner. If the author or the artist
in this country, being an American citizen, is entitled
to be protected in the reproduction of his work in
this country, there is nothing in the fact that a sea
divides us from another country which would war-
rant us in saying that our country should have a
right to appropriate the work of the foreign au-
thor or of the foreign artist. It is appropriation
that people are after when they seek to limit copy-
right to a single country, and to the citizens of a
single country." . .

February 10. — Mr. Evarts said, referring more
particularly to the Sherman amendment : " Mr.
President, I rise for the purpose of speaking to the
amendments proposed, but I will submit a few ob-
servations brought out by the treatment given to this
subject by the Senator from Ohio (Mr. Sherman).

"The Senator seems to misconceive the nature of
copyright or patent protection.

" We perfectly understand it in our application
under our Constitution and our laws to the copy-
rights and the patent rights which we grant here to
our citizens. It has nothing to do with the question
whether there should or should not be any profit or
tax of importation or otherwise, or any excise upon
printing books which may fall under this or that
interest of Congress in its revenue system. So it is
in regard to any foreign patent or any foreign author.

"The sole question for us is what we shall do
concerning something which is the essential nature

EXTRACTS FROM SPEECHES. 1 53

of copyright and patent protection, namely, monop-
oly. It does not touch the question whether there
shall be taxation here or there on the general prop-
erty of the country, or on general importations into
the country. It is this one direct proposition, as
correctly expressed in the Constitution as the most
careful phrase that could be adopted. It is to en-
courage these advantages to the world, that is, this
world of ours, in this country, so that we can draw
into the service of the community what is, as orig-
inated, the private possession of inventors and writ-
ers.

" It is a monopoly with them before they make
their composition or invention open, and it is simply
a contract which has been thought wise for the
public welfare that we shall say to the author or
inventor, ' for a limited period you shall have a
monopoly under certain conditions of public use
while your monopoly exists, and afterwards it shall
be free.'

"So no confusion of ideas should be introduced
into this debate, based on the fact that we are now
proposing to make the same treaty of monopoly
with a foreign author that we make habitually with
our own authors. We have led the way, in regard
to patent rights, by which we have drawn into the
advantage of this country patent inventions upon
the principle of monopoly equivalent to our own ;
and the question then as to whether we should be
at liberty to import also the manufactured inven-
tions on a duty or because one would like to have
an article that was made by a Sheffield manufacturer

154 THE QUESTION OF COPYRIGHT.

instead of by a Lowell manufacturer is wholly out-
side of the question of monopoly.

" It has no proper application to the case. It is
an invasion of the principle. If you do not wish to
give a monopoly then do not give it, but do not say
with one word, ' we give you a monopoly, provided,
however, that such monopoly can be evaded by the
importation of manufactures produced abroad.

PUBLISHERS AND THE COPYRIGHT BILL.

The passage on the last day of Congress of the
International Copyright Bill was preceded by an
interesting debate in the Senate over the report of
the Conference Committee. Apropos of the charges
that the bill contained undue restrictions by reason
of "the greed of the publishers," it is interesting to
read the remarks on this point of Senator Piatt and
of Senator Hiscock, who were both members of
the Senate Conference Committee.

According to the report of the debate in the Con-
gressional Record, Senator Piatt said :

" I think the Senator from Delaware hardly does
the publishers of this country justice in the state-
ment which he has just made. I think, so far as the
publishers are concerned, they would be willing, and
have been willing, to accept a good many modifica-
tions of the bill ; but the people who do the work,
the printers, have insisted, and I think with a great
deal of justice, that if we are going to allow to a
foreigner the exclusive market for his work we
ought at least to couple with it a provision that the

EXTRACTS FROM SPEECHES. 1 55

work shall be done in this country, inasmuch as,
practically, if an American goes abroad to obtain a
copyright in a foreign country the work on his book
will be done in that country."

Senator Hiscock said (also in reply to Senator
Gray) :

"The Senator certainly should not insinuate in any
way, or charge that as against the proposition we
have been pressed by the publishers, or that they
have thronged the lobby in opposition to it. I say
to him that in my opinion that the proposition
(z. e., the Sherman amendment) will be entirely
acceptable to the publishers. But there is an
interest that is entitled to be heard upon this
great question, the printers ; and they have been
heard. In their judgment a bill ought not to pass
here, the effect of which might be to transfer the
publication of books, either of this country or of
foreign authors to be sold here, to England, Ger-
many, France, or the islands of the sea. The argu-
ments which they have urged against it, the necessi-
ties which they have urged, were controlling upon
the House conferees, and I do not hesitate to say
that they have controlled my action in this matter.
Do not lay it, therefore, to the publishers ; they may
be eliminated ; and place the blame, the fault, if
there is any, precisely where it belongs. I do not
believe it to be a fault, or that they are to blame
for it."

This evidence from the two men who were best
acquainted with the facts shows clearly the real
attitude of the publishers in relation to the bill.

THE VOTE IN THE HOUSE OF REPRE-
SENTATIVES, DECEMBER 3, 1890, BY
WHICH THE COPYRIGHT BILL WAS
PASSED.

Yeas.

Nays.

Adams.

Abbott.

Allen, Mich.

Atkinson, Pa.

Andrew.

Barnes.

Arnold.

Bergen.

Atkinson, W. Va.

Bland.

Baker.

Blount.

Banks.

Breckinridge, Ark,

Bartine.

Brewer.

Bayne.

Brickner.

Beckwith.

Brookshire.

Belden.

Brown, Ind.

Belknap.

Buchanan, Va.

Bingham.

Candler, Ga.

Boothman.

Cannon.

Boutelle.

Clements.

Breckinridge, Rv.

Cobb.

Brosius.

Cooper, Ind.

Brunner.

Crisp.

Buchanan, N. J.

De Lano.

Burrows.

Dibble.

Burton.

Dockery.

Butterworth.

Dolliver.

Bynum.

Edmunds.

Caldwell.

Enloe.

Campbell.

Finley.

Carter.

Flick.

Caswell.

Forman.

Cheadle.

Forney.

VOTE IN THE HOUSE OF REPRESENTATIVES. 1 57

Yeas.
Cheatham.
Chipman.
Clancy.
Clark, Wyo.
Cogswell.
Coleman.
Comstock.
Cooper, Ohio.
Covert.
Craig.

Culbertson, Pa.
Cummings.
Cutcheon.
Dalzell.
Dargan.
Darlington.
Dingley.
Dorsey.
Dunnell.
Dunphy.
Evans.
Farquhar.
Fitch.
Flower.
Geissenhainer.
Gibson.
Greenhalge.
Grout.

Hansbrough.
Harmer.
Hemphill.
Hermann.
Houk.
Ketcham.
Kinsey.
La Follette.
Laidlaw.
Langston.
Lansing.

Nays.
Fowler.
Gest.

Goodnight.
Hare.
Hatch.
Haugen.
Hays, Iowa.
Haynes.
Heard.

Henderson, 111.
Henderson, Iowa.
Henderson, N. C.
Herbert.
Holman.
Hooker.
Kelley.
Kerr, Iowa
Kilgore.
Lacey.
Lane.
Lanham.
Lester, Va.
Mansur.
Martin, Ind.
Martin, Texas.
McClellan-
McCreary.
McMillan.
McRae.
Mills.

Montgomery.
Moore, Texas.
Morrill.
Norton.
Oates.
O'Ferrall.
O'Neill, Ind.
Owens, Ohio.
Paynter.

153

THE QUESTION OF COPYRIGHT.

Yeas.
Lawler.
Laws.
Lee.

Lester, Ga.
Lodge.
Magner.
Maish.
McAdoo.
McCarthy.
McComas.
McDuffie.
McKenna.
McKinley.
Miles.
Miller.
Moffitt.
Moore, N
Morey.
Morrow.
Morse.
Mudd.
Mutchler.
O'Donnell.
O'Neil, Mass.
O'Neil, Pa.
Osborne.
Owen, Ind.
Payne.
Penington.
Post.
Price.

Quackenbush.
Quinn.
Randall.
Reilly.
Reyburn.
Rusk.
Russell.
Sawyer.

Nays.
Pay son.
Peel.
Perkins.
Perry.
Peters.
Pierce.
Ray.

Reed, Iowa.
Richardson.
Rockwell.
Rogers.
Sayers.
Skinner.
Smith, 111.
Smith, W. Va.
Springer.
Stewart, Texas.
Stone, Ky.
Sweney.
Taylor, Ohio.
Thomas.
Turner, Ga.
Wheeler, Ala.
Whitelaw.
Whiting.
Wike.

Williams, 111.
Wilson, Mo.
Republicans 25, Democrats 70,
in all 95.

VOTE IN THE HOUSE OF REPRESENTATIVES. I 59

Yeas.
Scull.
Sherman.
Shively.
Simonds.
Smyser.
Snider.
Spinola.
Spooner.
Stephenson.
Stewart, Vt.
Stivers.
Stone, Pa.
Sweet.
Tarsney.
Taylor, Tenn.
Taylor, Ohio.
Townsend, Colo.
Townsend, Pa.
Tracey.
Tucker.
Vandever.
Van Schaick.
Vaux.
Waddill.
Wade.
Walker.
Wallace, N. Y.
Wiley.
Willcox.
Williams, Ohio.
Wilson, Wash.
Wilson, W. Va.
Yoder.
Republicans 96, Democrats 43,
in all 139.

VOTE IN THE SENATE MARCH 4, 1891,
BY WHICH THE COPYRIGHT BILL
WAS PASSED.

(At 2 o'clock in the Morning.)

Yeas.

Nays.

Aldrich.

Bate.

Allen.

Berry.

Chandler.

Call.

Dawes.

Carlisle.

Dixon.

Casey.

Dolph.

Coke.

Edmunds.

Cullom.

Farwell.

Daniel.

Frye.

Faulkner.

Hawley.

Gorman.

Hiscock.

Gray.

Hoar.

Ingalls.

Jones of Nevada.

Kenna.

McMillan.

Morgan.

Morrill.

Pettigrew.

Pasco.1

Plumb.

Pierce.

Ransom.

Piatt.

Sherman.

Sawyer.

Walthall.

Shoup.

Republicans 6, Democrats

Spooner.

in all 19.

Stanford.

Stewart.

13.

1 Voted first with the opponents : then changed his vote for
the purpose of moving reconsideration.

VOTE IN THE SENATE. l6l

Yeas.
Warren.
Washburn.
Wilson of Iowa.
Wolcott.
Republicans 26, Democrats I,
in all 27.
11

RESULTS OF THE COPYRIGHT LAW.

Reprinted from the Forum for January, 1894.

The Copyright Act which became law March 4,
1 89 1, and the provisions of which went into effect
July 1st of the same year, did not constitute a new
statute, but comprised simply amendments to cer-
tain sections of the statute relating to copyright,
which had been in force since July, 1870.1

It is not practicable to state with precision what
the effects of the law have been during the three
years of its operation, as there is a lack of trust-
worthy statistics concerning literary or publishing
conditions either for the period prior to the act or
for the present time. In arriving at any approxi-
mate estimate of these effects, it is in order, I judge,
to consider: first, the results secured by authors,

1 The most important changes in the law (omitting from present
consideration a few matters of technical detail) were as follows.
First : Its provisions, previously limited to the works of authors
(under which term I include for convenience artists and composers)
who were " residents of the United States," were extended to cover
the productions of non-residents on condition that such non-resident
author was a resident of a country which should concede to American
authors similar privileges. Second : All editions of the works copy-

RESULTS OF THE COPYRIGHT LAW. 1 63

American or foreign ; second, the results for Ameri-
can readers ; and, third, the effect on American pub-
lishing conditions.

The most important results of the new copyright
policy are naturally to be looked for in the literary
relations between the United States and Great Bri-
tain, relations which the supporters of international
copyright naturally had particularly in view.

Before the Copyright Act, the more reputable of
the English publishers who were not willing to
" appropriate " American books were deterred from
arranging for authorized editions by the certainty
that, if the books found favor with the English pub-
lic, "piracy" editions would promptly appear. The
appearance of many American titles in the lists of
the leading English publishers, and the increased
importance of the publishing done by American
firms through their branch houses in London, are
evidence that satisfactory arrangements with Ameri-
can authors are now being made, and that there
must be a substantial increase in the returns from
their English editions. It is probable, nevertheless,
that these English returns are less considerable than
were hoped for. Certain authors who have assumed

righted must be entirely manufactured in the United States. This
provision imposed a new restriction upon American authors, who had
previously been at liberty to have their books manufactured on either
side of the Atlantic. Third : The book, to secure American copy-
right, must be published in the United States not later than the date
of its publication in any other country. The provisions of the act
became operative between the United States and any foreign state
only when the President had made announcement, by proclamation,
that the necessary conditions of reciprocity had been fulfilled by such
State.

164 THE QUESTION OF COPYRIGHT.

that the lack of international copyright was the only
obstacle that prevented a transatlantic success have
learned that there are other difficulties in the way.
The English public is conservative. Scholarly read-
ers are not easily convinced of the scholarly trust-
worthiness or importance of works " from the States,"
while in light literature, and particularly in fiction,
the supply from English pens is more than sufficient
to meet the demand. It is further the case that for
the last two years, and particularly during the year
1893, there has been a continual depression in the
book-trade of Great Britain, and the English book-
sellers have been less willing and less able to invest
in " new and experimental lines of literature," to
which class, in their opinion, books by transatlantic
writers would necessarily belong. The sales in Eng-
land of authorized editions of "average" American
books have therefore increased less rapidly than was
hoped. There has, however, been a steady growth
in these sales, and it may be confidently predicted
that the near future will witness a more rapid devel-
opment. The gains, on the other hand, in the case
of authors who can command a public, have doubt-
less been very substantial. American authors whose
names have become known in England are begin-
ning also to secure some receipts from Paris, Leip-
sic, Berlin, and Stuttgart, but for some time to
come such Continental receipts can hardly be
considerable.

American publishers are now in a position to give
to American fiction a larger measure of favorable
attention than was possible when such volumes had

RESULTS OF THE COPYRIGHT LAW. l6$

to compete with English stories that had not been
paid for ; and the removal of this disturbing factor
must have proved a definite advantage to American
novelists, and especially to the newer writers. This
advantage has, however, been lessened or delayed
by the fact that during the last year large stocks of
" remainders " of the novels issued by the " reprint-
ing " firms that have become bankrupt have been
crowded upon the book-stands and offered at nomi-
nal prices.1 The disappointment of English authors
with the results of the copyright law has been keener
than that of their American brethren, because their
expectations were so much larger. During the half-
century in which international copyright has been
talked about, many statements had been put into
print and talked over in English literary circles, set-
ting1 forth the enormous circulation secured in " the
States" for unauthorized editions of English books,
and particularly of English fiction ; and large esti-
mates were arrived at as to the great fortunes that
were being made out of these editions by the pirati-
cal publishers. The writers whose names were
known on this side of the Atlantic, and who, after
arranging for authorized American editions, had re-
ceived the honor of being pirated, convinced them-
selves— not unnaturally — that, when this piratical
competition was removed, the payments from their
authorized publishers could be very greatly in-
creased. The authors who had secured neither the

1 Since the writing of this article, the competition of the increasing
group of ten cent and five cent magazines is exerting a serious influ-
ence on the circulation of fiction in book form. March, 1896.

l66 THE QUESTION OF COPYRIGHT.

tangible advantage of an authorized edition nor the
empty compliment of a piratical one, felt in many
cases equally assured that it was only the lack of
copyright protection which prevented American pub-
lishers from paying large sums for the privilege of
introducing their books to the American public.
With both groups of authors the phrase " the mill-
ions of American readers " was likely to be used. I
have myself heard the phrase " the sixty-five millions
of American readers." It was inevitable that the
results should bring disappointment to such glowing
expectations. As Mrs. Todgers plaintively remarked
of her trials in keeping a London boarding-house :
"A joint won't yield — a whole animal would n't
yield — the amount of gravy the young gentlemen
expect each day at dinner."

There has been, nevertheless, a substantial ad-
vance. The authors of the first rank (using the term
simply for commercial importance) have certainly
very largely increased the receipts from their Ameri-
can sales, while for authors of the second grade there
has doubtless also been a satisfactory gain. I think
it probable — though on such a point exact statistics
are unobtainable — that in one division of literature,
that of third-class or lower grade fiction, there has
been a decrease in the supply taken from England
for American readers. There never had been any
natural demand in America for English fiction of
this class, and it had been purveyed or " appropri-
ated " chiefly in order to supply material for the
weekly issues of the cheap " libraries." The lessen-
ing of the supply of this class of literary provender

RESULTS OF THE COPYRIGHT LAW. 167

may be classed as one of the direct gains from inter-
national copyright.

English authors have to-day the satisfaction that
they are able to place their books before their
American readers with a correct and complete text.
Before the amended Copyright Law, English books
had to be reprinted on what might be called a
" scramble system." It was often not practicable to
give to the printing of the authorized editions sufri-
cent time and supervision to ensure a correct typo-
graphy, while the unauthorized issues were not
infrequently — either through carelessness or for the
sake of reducing the amount and the cost of the
material — seriously garbled. The transatlantic au-
thor, who was then helpless to protect himself, can
now, of course, arrange to give at his leisure an
" author's reading " to his proofs.

The copyright law has, in my opinion, secured
substantial advantages for American book-buyers.
In one class of literature only have the prices in-
creased. The cheapest issues of current new fiction
sell at forty cents or fifty cents, in place of fifteen
cents or twenty-five cents. It is to be borne in
mind, however, that these prices do not stand for
the same amount or for the same quality of material.
The fifteen-cent "quarto " of the " libraries," hastily
and often carelessly printed, was an offence to the
eye and probably not infrequently an injury to the
sight. It was not, in the proper sense of the term, a
book, and could not be preserved as one. It was
usually bought for railroad reading, notwithstanding
the unsuitableness of its typography for such a pur-

l68 THE QUESTION OF COPYRIGHT.

pose, and was often thrown away at the end of the
journey. The decently printed half-dollar novel of
to-day gives much better value for its cost, and may
be preserved to be of service to many readers.

It is the case also that the fifteen-cent and twenty-
five cent " libraries " were not crushed out by the
copyright law, but for some time before the passage
of the law were rapidly coming to an end, as, even
with the aid of pirated material, they could not be
published at a profit. A large number of new con-
cerns, impressed with the belief that money was to
be made in the publishing of pirated fiction, had gone
into the " reprint " business shortly before the pass-
age of the Copyright Act. Their cut-throat compe-
tition speedily destroyed the very inconsiderable
possibility of profit in the business. Books availa-
ble for reprinting became exhausted, so that it was
difficult to secure enough of material to keep up the
weekly issues required to secure periodical postage
rates, and, as one result, the stuff used for the weekly
issues became more and more " rubbishy." Even
before the act, there had been not a few failures
among these " reprint " publishers. There have been
more important failures since, and the " bargain "
departments in the dry-goods shops are still working
off the remainders of the bankrupt stock, much of it,
like many other " bargains," dear at any price.

Except in this class of cheap fiction, there has
been with copyrighted foreign books a steady ten-
dency to lower prices. Before, it was the frequent
practice of the publisher of a higher-grade book
(knowing that if it secured for itself a preliminary

RESULTS OF THE COPYRIGHT LAW. 1 69

success, he would have to contend later with pirati-
cal competition) to secure for his first edition the
highest price that the market would bear. In the
cases in which there was no second edition, this high
price remained the only price to the readers who had
to have the book. Now, the American edition of
such a work is planned at once for the widest possi-
ble market, and to this end is issued at a popular
price. The publisher knows that, when he can con-
trol the market, a wide sale at the low price demanded
by the requirements of American readers secures in
the end the most remunerative results. The prices,
therefore, of literature other than fiction — that is, of
history, biography, science, and the like — are lower
than before. On this point I will cite the testimony
of Mr. Spofford, the Librarian of Congress, who is in
a position to know :

" The first great benefit of international copyright has been the
gradual decline in the price of standard foreign works. Before the
passage of the act, — when, for instance, an English publishing house
could not be protected in its editions of important medical and scien-
tific works by foreign authors, — the only course to pursue was to
charge a very high selling-price for a limited market, which rarely
extended beyond Great Britain. Works of this class are now, how-
ever, planned to secure a market on both sides of the Atlantic, and
the result is much larger sales at popular prices. This brings a sub-
stantial advantage to the more scholarly readers of the community,
who are able to secure, at lower prices than heretofore, editions of
scientific works which have been carefully printed to meet their own
special requirements. The dread that the bill would create publish-
ing monopolies proves to have been entirely unfounded. One of the
most noteworthy results of the law, from the American standpoint,
has been the cleansing effect upon the character of reprinted fiction.
By far the larger proportion of the cheap novels of an undesirable
character with which the market has been flooded during the past

170 THE QUESTION OF COPYRIGHT.

fifteen years were the work of English or French authors. A group
of publishing houses in the United States, which made a specialty of
cheap books, vied with each other in the business of appropriating
English and Continental trash, and printed this under villainous
covers, in type ugly enough to risk a serious increase of ophthalmia
among American readers."

There is a noteworthy increase in the number of
international undertakings, works, or series, the con-
tributions to which are written by the best authori-
ties on special subjects, the writers for which are
secured from this country, from England, or from
the Continent, wherever the best men happen
to be. Such international publications existed be-
fore the copyright, but were then carried on at a
special disadvantage. Now, the editorial work can
be done with proper deliberation, and the publishers
can afford to pay the best writers for the best work.
The cost of the authorship (and of the illustrations,
if any are required) being divided between two or
more markets, publishers are able to give to the
readers, at a moderate price, the best material in a
satisfactory and attractive form. Publications of
this class often require several years for their prepa-
ration, and two years is not a long enough period to
enable this phase of the results of copyright to be
fairly tested. With an adequate protection of prop-
erty in literary productions, irrespective of political
boundaries, we can confidently expect in the near
future a large development of such international
undertakings, — a development which will prove of
direct service to both writers and readers and to the
work of higher education.

RESULTS OF THE COPYRIGHT LAW. 171

While the artists of the Continent, whose creations,
reproduced in the form of engravings or photogra-
vures, are available for sale in the United States, are
deriving from the law, if not as large returns as were
at first hoped for, yet substantial advantage, the
Continental authors have been very seriously disap-
pointed, and seem to have legitimate grounds for
their disappointment and for their criticism. These
authors complain that they have been invited to a
" barmecide feast," and that they have " thanked us
for nothing." The condition that the work, to be
protected by American copyright, must be manufac-
tured in this country and that the American edition
must be published not later than the edition in the
country of origin, causes inconvenience and diffi-
culty to the authors of England ; but it is prac-
tically prohibitory in the cases of works originally
issued in a foreign language. It is almost impos-
sible for a French or German author to arrange
to issue his book in this country (either in the
original or in a translation) simultaneously with
its publication abroad. The resetting in the origi-
nal language, for such limited sales as could be
looked for here, would be unduly expensive, while
time is required for the preparation of a satisfac-
tory translation. As a result of this restriction,
but few French or German authors have been able
to secure the protection of the act, and the French
Society of Authors, to whose initiative and efforts
were chiefly due the international copyright system
now in force throughout Europe, has found occasion
to criticise very sharply the procedure of the Ameri-

172 THE QUESTION OF COPYRIGHT.

cans in granting literary copyright in form while
withholding it in fact.

While the Copyright Act is defective as well in its
bearing upon the interests of Continental authors as
in sundry other respects, and ought in my judgment
certainly to be amended, I am of opinion that it
would be unwise at this time to make any effort to
secure such amendments. The public opinion which
creates and directs legislative opinion is not yet suf-
ficiently assured in its recognition of the rights of
literary producers, to be trusted to take an active or
intelligent interest in securing more satisfactory pro-
tection for such producers. There would be grave
risk that, if the copyright question were reopened in
the present Congress, we might, in place of develop-
ing or improving the copyright system, take a step
backward, and lose the partial measure of interna-
tional copyright that it has taken the efforts of half
a century to secure.

The provision establishing international copyright
is only a clause in the general Copyright Act, and
the whole act ought before many years to be care-
fully revised. Work of this kind, instead of being
referred at the outset to a Congressional committee
whose interest in the subject or ability to consider it
intelligently could not with certainty be depended
upon, ought to be entrusted to a Commission of
experts selected for the purpose, which should be
instructed to take evidence and to submit a report
to serve as a basis for legislation. This is the system
that has been pursued with the copyright legislation
of England, France, Germany, and Italy, and is what

RESULTS OF THE COPYRIGHT LAW. 1 73

might be termed the scientific method of arriving at
satisfactory legislation on subjects of intricacy or
complexity.

Among the recommendations that would be placed
before such a Commission would be one for the
lengthening of the term of copyright. The present
term (twenty-eight years, with a right of renewal to
an author, to his widow, or to his children, for. four-
teen years) is shorter than that of any civilized
country. The British term is forty-two years, or the
life of the author and seven years, whichever term be
the longer ; the German, the life of the author and
thirty years ; the French, the life of the author and
fifty years. The amended British law now pending
in Parliament (the Monkswell bill) accepts the Ger-
man term, the life of the author and thirty years.
Under the American law, an author may see his
earlier productions pirated during his own lifetime,
as happened to Longfellow, and, more recently, to
Donald G. Mitchell.

By the time an amended copyright bill is in shape
for consideration, it is probable that the typograph-
ical unions will have convinced themselves that they
do not require the aid of the " manufacturing " pro-
vision forbidding the importation of foreign type or
plates for copyrighted books. Such a provision has
no logical connection with copyright, but belongs
rather with the prohibitory division of a tariff act,
such as that which now forbids, as equally dangerous
and undesirable, the importation of obscene litera-
ture and of ships. When, with a developed public
opinion and a more robust condition of mind on the

174 THE QUESTION OF COPYRIGHT.

part of the typographers, the conclusion has been
reached that the manufacturing condition can be
spared from the Copyright Act, the United States
will be free to unite with the other civilized nations
of the world in accepting the world-wide copyright
of the Berne Convention.

G. H. P.

XII.

CASES AND DECISIONS SINCE THE ACT
OF 1891, THE ISSUES OF WHICH HAVE
INVOLVED QUESTIONS OF INTERNA-
TIONAL COPYRIGHT.1

Fraudulent Reproduction of Works of Art.

U. S. Circuit Court, New York City. Townsend, Judge.
Fishel, Adler &° Schwarz vs. Lueckel, Unger e^ Co.

In re reproduction, by photogravure, of certain works of art, which
had been duly copyrighted in Washington. The reproductions omitted
the tint, title, and platemark. They were stamped "made in Ger-
many," and were exported for sale in Europe.

Judgment for plaintiffs for $750, amount of alleged profits. Pho-
tographic negatives to be delivered to plaintiffs. Perpetual injunc-
tion granted. (Dec, 1892).

U. S. Circuit Court, of Mass. in Boston. Putnam, Judge.
Werckmeister {on behalf of the Photographische Geselhchaft of Berlin)
vs. Pierce and Bushnell of New Bedford.
The plaintiffs were the owners of the exclusive rights of reproduc-
tion of the design of a painting by G. Naujok, a resident of Ger-

1 For information concerning the cases here cited, I desire to ex-
press my acknowledgments to the following counsel, who are regarded
as authorities in questions of copyright law : Samuel J. Elder of
Boston, and Rowland Cox, D. G. Thompson, Roger Foster, A. T.
Gurlitz, Everett P. Wheeler, and Arthur von Briesen, of New York.

176 THE QUESTION OF COPYRIGHT.

many, entitled " Die Heilige Cecilia." They entered for copyright in
Washington the design of this painting, filing with the entry a repro-
duction in photograph. The defendants were offering for sale unau-
thorized reproductions (taken by a photographic process) of the same
work. Judgment in favor of plaintiffs. Injunction granted August,
1893. In September, 1894, this decision was, on appeal, affirmed.

January, 1S96, the above decision was reversed by the U. S. Circuit
Court of Appeals for the first circuit of Mass., opinion of Judges
Colt and Nelson, Judge Webb dissenting. The injunction against
original defendants was under this decision dissolved, the copyright
claimed by them being adjudged invalid.

The conclusion presented in the dissenting opinion of Judge Webb
is worded as follows: " I cannot concur with either the reasoning
or the conclusions of the majority of the Court, but am of the opinion
that the judgment of the Circuit Court (Judge Putnam's) should be
affirmed."

The case turned, 1st, upon the requirement of the Act for the
inscription upon the original design (in this case an oil painting)
of the notice required by law, and 2d, upon the question whether the
plaintiff ought not to have based his claim for copyright upon the
photograph produced by him, which he could properly have entered
for copyright, and have limited his claim to the control of such pho-
tographs, in place of setting up a claim to control the design of the
painting, concerning which the copyright requirements had not been
fulfilled : and 3d. Whether the public exhibition of the painting
constituted a publication in the sense of the law.

The court held that the failure to place on the painting the notice
of copyright constituted a fatal defect to the American copyright,
even though said painting had not been brought to the country, the
painting itself being the original design for which copyright was
claimed ; and held, further, that the public exhibition of the painting
constituted a publication.

The affirmative points decided under the several decisions above
presented are stated by the plaintiff to be as follows :

1. That the right to reproduce photographic copies from paintings
painted abroad by foreigners could be assigned to the " Photograph-
ische Gesellschaft," of Berlin,

2. That it was proper and legal for the photographic reproductions
of such paintings to be marked "Copyright, 1892, by Photographische
Gesellschaft,"

CASES AND DECISIONS. 1 77

3. That the " Photographische Gesellschaft," as the owner of the
copyright upon such painting, is protected against all unauthorized
reproductions of the same in any form,

4. That it was not necessary for the " Photographische Gesell-
schaft " photographs to be printed from negatives or transfers made
within the limits of the United States.

The case will be appealed to the Supreme Court. If this highest
authority should confirm the decision arrived at by the majority of
the Massachusetts Circuit Court, it will put very serious difficulties
in the way of securing American copyright for works of art originat-
ing abroad, — and will give ground for fresh attacks upon the Act
of 1891, on the part of Germany, France, and Italy.

The Britannica Cases.

The Britannica Cases, i8jg-i8gj.

The first of the series of cases which had to do with the unau-
thorized issues of the ninth edition of the " Encyclopedia Britannica "
was initiated twelve years before the enactment of the International
Copyright Act, and the latest of the series, while decided in 1893,
was not based in any way upon the provisions of that Act. These
cases involved, however, certain issues that could be described as
international, and as the final decision was arrived at within the term
specified for this chapter, I think it in order to present a summary of
the series.

The first case, that of Black et al. vs. Stoddart, had been initiated
in 1879, in the U. S. Circuit Court for the Eastern Dist. of Penna.
The plaintiffs, A. and C. Black, of Edinburgh, were the publishers
of the " Encyclopedia Britannica," the ninth edition of which was
at that time in course of publication.

This edition was imported into the United States by Little, Brown
& Co. , of Boston, who acted as agents for the publishers. The de-
fendants, J. M. Stoddart & Co., of Philadelphia, had undertaken
the production of an unauthorized reprint, and of this reprint
they had issued the first seven or eight volumes. There was no
ground under which the owners of the work or their American agents

178 THE QUESTION OF COPYRIGHT.

could claim American copyright in the material contained in these
earlier volumes. Before the publication of the set had progressed
beyond the seventh volume, the Blacks arranged with Charles Scrib-
ner's Sons, of New York, to publish a cheaper edition of the " Encyclo-
pedia " from duplicate sets of plates which were sent from Edinburgh
for the purpose. It was the intention, in planning this popular edi-
tion, to render unprofitable the competition of such unauthorized
reprints as that of the Stoddarts, and also to secure a wider sale for
the work than could be looked for for the higher-priced imported vol-
umes. With the view to making certain divisions of the material
more valuable for the requirements of American readers, articles from
American contributors were secured for the tenth volume and for
certain succeeding volumes. For the purpose of testing the practica-
bility of protecting the volume as an entirety, that is to say, of pre-
venting a literal reprint, two or three of the American contributions
to the tenth volume were issued in pamphlet form as separate publi-
cations, which were duly entered for copyright.

Plaintiffs sought an injunction to restrain the defendants from
including these copyrighted articles in their reprint of the tenth
volume. Judge Butler, in denying the injunction, rather went out
of his way (as if for the purpose of foreshadowing the opinion of the
court on the main issue, and thus of discouraging the further prose-
cution of the suit) to characterize the proceedings as an attempt on
the part of aliens to interfere with a legitimate American industry.
The plaintiffs were discouraged at this attitude of the court and were
unwilling to authorize their American representatives to continue
the suit. The Stoddart edition of the ' ' Encyclopaedia " was completed,
but it was itself interfered with by the competition of one or two
still cheaper reprints, for one of which the plates were reproduced
by the new photographic process. The Stoddart undertaking proved
in the end unremunerative, and the publishers failed.

In 1889, two suits were brought in the U. S. Circuit Court for the
Southern District of New York, by Black et a/, against the Henry
G. Allen Co.

One of these suits was brought upon an article by Francis A. Walker,
entitled" United States, Part III, Political Geography and Statistics,"
which had been duly copyrighted ; and the other upon an article
by Alexander Johnston, entitled " United States, Part I, History
and Constitution," which also had been duly copyrighted and had
been published in separate form. These articles were later included

CASES AND DECISIONS. 1/9

in the twenty-third volume cf the "Cyclopedia." The defendants
interposed demurrers to these bills of complaint. The demurrers
came on for argument before Judge Shipman, who decided that the
copyright of these two articles was valid and that the defendant*'
demurrers should be overruled and the defendants compelled to
answer the bills. On the issues raised by such demurrers, the Judge
says : " There is no vital difference in regard to the infringement of
an author's copyright whether it be printed in a separate volume or
in connection with authorized material. If the author has a valid
copyright, it is valid against any unpermitted reprint of his books ;
and the fact that his book is bound up in a volume with fifty other
books, each of which is open to the public, is immaterial."

Judge Shipman further held that while a non-resident foreigner
was not (in 18S9) within our copyright law, he could take and hold
by assignment a copyright granted to one of our citizens.

2. That a copyright can be assigned not only as a whole, but in
sub-divisions, and that the copyright may become the individual
property of joint owners.

3. That there is no vital difference in regard to the infringement
of an author's copyright whether it be printed in a separate volume
or in connection with material which belongs to the public domain.

4. That the fact that these American articles had been prepared
for the volume for the purpose of securing for the work some measure
of protection against appropriation, could not constitute any ground
for refusing to the plaintiffs the benefit of such remedies as they are
entitled to under the law.

Another suit by Black et al. vs. Isaac K. Funk et al. was brought
in June, 1890, in the U. S. Circuit Court for the Southern District of
New York, upon the Walker article.

This suit, and the two suits against the Henry G. Allen Co., were
argued together at final hearing, upon full proofs, before Judge
Townsend, who rendered his decision in April, 1893, in favor of the
plaintiffs.

The cases turned upon the appropriation on the part of the defend-
ants, for use in their unauthorized edition of the "Encyclopaedia,"
of certain material of which Walker and Johnston were the authors.
This material had been duly copyrighted, and the Johnston article
had been issued in book form, and had, later, been included by
Black, under assignment from the authors, in the twenty-third vol-
ume of the ninth edition of the " Encyclopaedia." This volume

l8o THE QUESTION OF COPYRIGHT.

contained other copyrighted American material which had in like
manner been appropriated by the defendants, but these two articles
were selected as a convenient test of the question of the practicability
of protecting the volume through the including of American articles.
The main issues in the cases were as follows :

The right of the authors to assign their copyright to an alien.

The precise fulfilment of the provisions of the law in regard to the
depositing, within ten days of publication, two copies of the volume
containing the articles.

The difference between the titles of the articles as originally en-
tered for copyright, and the titles as printed in the " Encyclopaedia."

The legality of a copyright remaining vested in one party while
another party holds under contract or assignment a beneficial interest
in it.

The validity of the copyright of a single article, bound up in a
volume the bulk of which is publici juris, against any authorized re-
print of the entire work.

These several points were decided by the court in favor of the
plaintiffs, and an injunction was granted. The decision followed
closely upon the lines of the previous decision, rendered by Judge
Shipman (in 1890), overruling the demurrers of the defendants in the
Allen cases.

In 1890, suit was brought by Black el al. vs. Samuel W. Ehrich
et al. in the U. S. Circuit Court for the southern district of N. Y.
Defendants, constituting the firm of Ehrich Brothers, of New
York, were, in conjunction with R. S. Peale and Co., of Chicago,
circulating a reprint of the " Britannica," which had been pre-
pared from plates produced in facsimile by a photographic process.
The Peale reproduction omitted the copyrighted American articles.
The contention of the plaintiffs rested therefore not on an infringe-
ment of copyright, but on an infringement of trade-mark. The de-
fendants called their work the "Encyclopaedia Britannica," "an exact
reproduction of the Edinburgh edition of 1890." Their book was
advertised at $1.50 per volume, the price of the authorized work being
$5.00 per volume. The court held that the plaintiffs' contention was
not well founded and an injunction was accordingly denied.

I have omitted from the above summary a number of the points
and decided which were more or less technical or which, on other
grounds, were less important. The decisions on the main issues and
on the essential points, and the attitude and utterances of the judges

CASES AND DECISIONS. l8l

before whom these later cases were brought, give ground for the
conclusion that during the fourteen years between 1879 and 1S93,
there had been a development of public opinion and of the opinion
of the courts in the direction of a more assured and more extended
recognition of the property rights of literary producers and their
assigns. The passage of the Act of 1891 and the discussions in re-
gard to copyright which preceded that Act are undoubtedly to be
credited with a large share in this education of the opinion of the
public and of the courts.

The Protection of Lectures.

U. S. Circuit Court, Phila. Dallas, Judge.
Drummond, Henry, vs. Allemus & Co.

In re Lectures of plaintiff entitled " The Ascent of Man." Lec-
tures delivered in Boston ; announcement made in due course that
lecturer " reserved all publication rights." Lecturer was under con-
tract with his authorized publishers, Jas. Pott & Son, of New York,
to issue the material (when revised) in book form. Defendant pub-
lished an unauthorized edition of a book under the same title, made
up from incomplete and fragmentary newspaper reports of the lec-
tures. Plaintiff, a British subject, temporarily resident in the
United States, claimed protection under the provisions of copyright
protecting lecturers, and also under the common law protecting un-
published material.

Injunction granted (January, 1894) : — The Court took the ground
that " the subject of copyright " was " not directly involved." The
volume printed by the defendant did not present the lectures cor-
rectly, but with omissions and additions which materially altered their
purport. This constituted a personal wrong to the author, and inci-
dentally a fraud upon the purchasers. If the defendant had confined
his action to reprinting only that portion of the lectures which had
appeared in the British Weekly, and his volume had correctly de-
scribed its contents, the plaintiff would have been without remedy.
The complainant's right to restrain the present publication has, how-
ever been fully made out.

1 82 THE QUESTION OF COPYRIGHT.

Does the Requirement of the U. S. Law Concerning the
Printing of the Notice of Copyright Apply to the For-
eign as Well as to the American Editions ?

U. S. Circuit Court of New Jersey.

Haggard {Rider), of London, and Longmans, Green &* Co., of Lon-
don, &■ New York, vs. The Waverly Publishing Company.

In regard to Haggard's " Nada the Lily." Plaintiffs were the
author and the authorized publishers of said book, which had been
duly copyrighted under the Act of 1891. The action was brought
(in April, 1S94), to restrain the publication of an unauthorized edition
issued by the defendants. The defence was based in substance on
two contentions :

1st. That the Act of 189 1 was unconstitutional, because it gave to
the President a discretionary or judicial power, not within the consti-
tutional functions of an Executive, to determine the status of copy-
right law in foreign states, and to concede (or to withhold) copyright
relations with such states.

2nd. That the U. S. Act of 1870 (which in this respect was not
modified by that of 1891), required the printing of the United States
copyright notice in all editions and in all copies issued of a work
claiming U. S. copyright : — that the plaintiffs had not ventured to
contend that such notice had been printed in all the editions issued of
" Nada the Lily," and had submitted with their complaint and as evi-
dence of this copyright entry, only copies of certain editions printed
in the United States : that, as a matter of fact, editions had been
printed in Melbourne and elsewhere which did not contain this entry
of U. S. copyright, and that a copy of one of these editions had been
utilized for the printing of the American edition issued by the de-
fendant.

The Court sustained on this point, in substance, the contention of
the plaintiffs, overruling the demurrer of the defendants. Leave
was given to the plaintiffs to amend their bill of complaint so as to
plead that while in the foreign editions of " Nada " the United States
copyright notice had been omitted, the fact of such omission, in edi-
tions issued outside of the territory of the United States, and by
parties not amenable to the authority of the United States, could not

CASES AND DECISIONS. 183

invalidate the protection of American copyright for editions issued
within the United States, and for which the requirement of the law
had been complied with. The judge admitted, that he regarded the
question as " a close one," which could be decided finally only upon
a full hearing of the case on its merits. The preliminary injunction
was denied, for the purpose apparently of securing a decision on the
main question at issue. It is understood that the case will be carried
to the Supreme Court. The defendant's contention in regard to the
unconstitutionality of the Act will, I understand, probably be
dropped. The issue raised in regard to the requirement of the print-
ing of the United States copyright entry in all the editions issued of
a book claiming American copyright, is evidently one of far-reaching
importance. If the failure to secure such entry in all editions,
whether authorized or unauthorized, issued in countries which may
not even be in copyright relations with the United States, is to in-
validate American copyright, there is of course no copyright protec-
tion under the Act of 1891, either for foreign authors or for Americans,
and there has in fact been no defensible copyright fur American
authors under the Act of 1S70.

The decision of the Supreme Court in the " Nada" case will there-
fore be awaited with interest.

The Control of a Copyrighted Title.

U. S. Circuit Court.
Harper vs. Ranous.

67 Fed. Rep. 904.

In re title of " Trilby."

Plaintiffs are the owners, under assignment from the author,
Du Maurier, of the copyright, for the United States, of the book
"Trilby." Defendants utilize this title for a dramatic perform-
ance which does not present scenes from the story nor borrow its
material. Plaintiffs attempt to prevent this use of their title. The
Court held that the copyright protects the name only in conjunction
with the book, and not the name alone, and refused to enjoin the
performance. (May, 1894.)

1 84 THE QUESTION OF COPYRIGHT.

Musical Compositions and the Manufacturing Requirement.

U. S. Circuit Court, Dist. of Mass., Boston. Colt, Judge.

Littleton, on behalf of Novello, Ewer &= Co. of London,
vs. The Oliver Ditson Company of Boston.

In regard to the music composed for " Lead Kindly Light," and
to certain other musical compositions. Music printed in London
and published simultaneously in London and New York ; entered for
copyright in Washington. Case decided in June, 1894, by Judge Colt,
who granted an injunction in favor of plaintiff. The chief question
at issue in the suit was whether music compositions originating in
Europe, must, in order to secure copyright in the United States, be
printed from type set up or from plates engraved in the States. This
involved the question whether the definition of a " book" within the
meaning of the manufacturing clause included a musical composition
in sheet form. Both of these questions were decided by Judge Colt in
the negative.

It was admitted that the music was published in book form, and
had been printed from lithographic stones not produced in the United
States ; but the contention was upheld that musical publications were
not included in the list of articles specified in Sect. 3 of the Act
("book, photograph, chromo, or lithograph") required to be manu-
factured in this country.

62 Fed. Rep. 597, Oct., 1894.

Affirmed in Court of Appeals, April, 1895. 67 Fed. Rep. 905.

Carte vs. Duff.

25 Fed. 183.

Carte, an alien, purchased from Gilbert & Sullivan, British sub-
jects, their right of public representation in the United States of the
comic opera " The Mikado, or The Town of Titipu," of which Gilbert

CASES AND DECISIONS. 1 85

was the author of the literary parts, and Sullivan the author of the
musical parts. They employed one Tracy, a citizen of the United
States, to come to London and prepare a piano-forte arrangement
from the original orchestral score, with a view to copying the same
in the United States. After Tracy made the piano arrangement,
proceedings were taken to copyright it as a new and original compo-
sition in the United States ; and Carte purchased of Gilbert, Sulli-
van, and Tracy the title to such copyright. After the recording in
the Library of Congress of the title of this arrangement, the libretto
and vocal score of the opera and piano-forte arrangement of Tracy
were published and sold in England, with the consent of Gilbert &
Sullivan. The orchestral score was never published, but was kept
by Gilbert and Sullivan for their own use and for that of licencees
to perform the opera. Duff purchased in England a copy of the
libretto, vocal score, and piano-forte arrangement, and procured a
skilful musician to make an independent orchestration from the vocal
and the piano score, and was about to produce the opera in New
York City, with the words and voice parts substantially the same as
those of the original and with scenery, costumes, and stage business
in imitation of the original, and with the orchestration which he had
procured to be made, and without claiming that he employed the
orchestration of the original opera. Carte sought to enjoin the public
representations proposed by Duff.

Held, that the publication of the libretto and vocal score of the
opera in England with the consent of the authors was a dedication of
their playright, or of the entire dramatic property in the opera to the
public, notwithstanding their retention of the orchestral score in the
manuscript, and that the public representation in the United States
could, therefore, not be enjoined.

Carte vs. Evans,

27 Fed. 861.

The title as filed was : " Piano-forte arrangement of the comic
opera, " The Mikado, or the Town of Titipu," by W. S. Gilbert and
Sir Arthur Sullivan, by George L. Tracy."

The title as published was : " Vocal Score of the Mikado, or the
Town of Titipu." An arrangement for the piano-forte, by George
L. Tracy (Boston, U. S. A.) of the above-named opera by W. S.
Gilbert and Arthur Sullivan.

Held, that the variance did not prejudice the title.

1 86 THE QUESTION OF COPYRIGHT.

Burden of Proof concerning American Manufacture.

U. S. Circuit Court, Eastern Div. Eastern Judicial District.
Adams, Judge.

Osgood vs. A. S. Aloe Instrument Co.

69 Fed. Rep. 291.

This case decided merely a question of pleading, viz. : that the fact
that the copyright is invalid because the books were not printed from
plates made in this country is a matter of affirmative defence, and
should be set up and proved by the alleged infringing party. Inci-
dentally, the case decided that the two copies of the copyrighted work
deposited in Washington need not contain the copyright notice, but
that this notice must contain the name of the copyrighting party (June,
1895). -

The Control of a Title as Trade Mark connected with
Copyrighted Material.

U. S. Circuit Court, Southern District of New York.

Mac Laren Cases.

Dodd, Mead & Co. of New York have instituted suits against the
publishers and the distributors of unauthorized editions of volumes
of sketches by the author John Watson, who writes under the name
of Ian Mac Laren. These suits have at this time of writing (February,
1896) not been sufficiently advanced to be matters of record. It is
understood, however, that the contention of the plaintiffs will be based
on copyright and also on trade-mark. The volumes complained of
contain certain sketches, which were collected, arranged, revised,
and completed by the author to constitute a continuous and integral
book, and for this copyright is claimed. The author had, moreover,
selected for his American volumes distinctive titles, ("Beside the
Bonnie Brier Bush" "A Doctor of the Old School") and he also
claims protection for the body of material associated with these
titles, that is, for the volume as put together by him and for the titles
as of trade-marks placed upon the material.

It is the further contention of the plaintiffs that the volumes printed

CASES AND DECISIONS. 1 87

by the defendants contain incomplete and incorrect material which
being sold under the titles associated by the public with the authorized
and complete book, is calculated (and intended) to deceive or mislead
the public.

Later. (March 1S96). Since the above paragraph was put into
type, a decree has been secured in the U. S. District Court for the
Southern District of New York (Judge Lacombe), against the de-
fendants in one of the above suits, sustaining in substance the con-
tention of the complainants.

XIII.

ABSTRACT OF THE COPYRIGHT LAW OF
GREAT BRITAIN.

The following are the dates and titles of the laws
constituting the existing copyright law of Great
Britain :

DOMESTIC COPYRIGHT.

8 Geo. 2. c. 13. An Act for the encouragement of the arts of de-
signing, engraving, and etching historical and other prints by vesting
the properties thereof in the inventors and engravers during the time
therein mentioned.

7 Geo. 3. c. 38. An Act to amend and render more effectual an
Act made in the eighth year of the reign of King George the Second
for encouragement of the arts of designing, engraving, and etching
historical and other prints ; and for vesting in and securing to Jane
Hogarth, widow, the property in certain prints.

15 Geo. 3. c. 53. An Act for enabling the two universities in Eng-
land, the four universities in Scotland, and the several colleges of
Eton, Westminster, and Winchester, to hold in perpetuity their copy-
right in books given or bequeathed to the said universities and col-
leges for the advancement of useful learning and other purposes of
education ; and for amending so much of an Act of the eighth year
of the reign of Queen Anne as relates to the delivery of books to the
warehouse keeper of the Stationers' Company for the use of the
several libraries therein mentioned.

17 Geo. 3. c. 57. An Act for more effectually securing the property
of prints to inventors and engravers by enabling them to sue for and
recover penalties in certain cases.

54 Geo. 3. c. 56. An Act to amend and render more effectual an
Act of His present Majesty for encouraging the art of making new

models and casts of busts and other things therein mentioned, and
for giving further encouragement to such arts.

3 Will. 4. c. 15. An Act to amend the laws relating to dramatic
literary property.

5 & 6 Will. 4. c. 65. An Act for preventing the publication of
lectures without consent.

6 & 7 Will. 4. c. 59. An Act to extend the protection of copyright
in prints and engravings to Ireland.

5 & 6 Vict. c. 45. An Act to amend the law of copyright.

25 & 26 Vict. c. 68. An Act for amending the law relating to
copyright in works of the fine arts, and for repressing the commis-
sion of fraud in the production and sale of such works.

38 & 39 Vict. c. 53, in part. An Act to give effect to an Act of the
Parliament of the Dominion of Canada respecting copyright. Sec-
tion 4 only repealed.

INTERNATIONAL COPYRIGHT.

7 & 8 Vict. c. 12. An Act to amend the law relating to interna-
tional copyright.

15 & 16 Vict. c. 12, in part. An Act to enable Her Majesty to
carry into effect a convention with France on the subject of copy-
right ; to extend and explain the International Copyright Acts ; and
to explain the Acts relating to copyright in engravings. Repeal not
to extend to section 14.

38 Vict. c. 12. An Act to amend the law relating to international
copyright.

The following is the Digest of these laws, pre-
pared by Sir James Stephen, Q.C., and presented in
the Report of the Royal Copyright Commission,
1878, as the most authoritative statement of British
copyright law :

Article i.
Copyright in Private Documents.

The author or owner of any literary composition or work of art
has a right, so long as it remains unpublished, to prevent the publi-
cation of any copy of it by any other person.

1 9° THE QUESTION OF COPYRIGHT.

Article 2.

Effects of Limited Publication of Private Documents.

The publication of any such thing as is mentioned in the last arti-
cle for a special and limited purpose, under any contract, or upon
any trust express or implied, does not authorize the person to whom
such thing is published to copy or reproduce it, except to the extent
and for the purposes for which it has been lent or intrusted to him.

Article 3.

Letters.

A person who writes and sends a letter to another retains his copy-
right in such letter, except in so far as the particular circumstances
of the case may give a right to publish such letter to the person ad-
dressed, or to his representatives, but the property in the material
on which the letter is written passes to the person to whom it is
sent, so as to entitle him to destroy or transfer it.

Article 4.
No other Copyright except by Statute.

There is (probably) no copyright after publication in any of the
things mentioned in Article 1, except such copyright as is given by
the express words of the statutes hereinafter referred to.

Publication in this article means in reference to books (as defined
in the next article) publication for sale. It is doubtful whether in
relation to works of art it has any other meaning. There is (it seems)
no copyright in dramatic performances except by statute.

Article 5.
Book defined — Law of Copyright in Books.

In this chapter the word "book" means and includes every vol-
ume, part or division of a volume, pamphlet, sheet of letter-press,
sheet of music, map, chart, or plan, separately published.

The word " copyright " means the sole and exclusive liberty of
printing, or otherwise multiplying copies of any subject to which
the word is applied.

When a book is published in the lifetime of its author, the copy-
right therein is the personal property of the author and his assigns

from the date of such publication, for whichever may be the longer
of the two following terms, that is to say :

(1) A term of 42 years from publication.

(2) The life of the author, and a term of 7 years, beginning from

his death.

If the publication takes place after the author's death, the propri-
etor of the author's manuscript and his assigns have copyright in his
book for a term of 42 years from its first publication.

If one person employs and pays another to write a book on the
terms that the copyright therein shall belong to the employer, the
employer has the same copyright therein as if he had been the author.

If the publisher or proprietor of any encyclopedia, review, maga-
zine, or periodical work, or work published in parts or series, em-
ploys and pays persons to compose any volume, part, essay, article,
or portion thereof, on the terms that the copyright therein shall
belong to such publisher or proprietor, such publisher or proprietor
has upon publication the same rights as if he were the author of the
whole work (with the following exceptions) :

1. After 28 years from the first publication of any essay, article,

or portion in any review, magazine, or other periodical work
of a like nature [not being an encyclopaedia], the right of pub-
lishing the same in a separate form reverts to the author for
the remainder of the term for which his copyright would have
endured if the same had been originally published by him
elsewhere.

2. During the said term of 28 years the publisher or proprietor

may not publish any such essay, article, or portion, separately
or singly, without the consent of the author or his assigns.

The author of any such magazine as aforesaid may, by contract
with any such publisher or proprietor, reserve the right of publishing
any work, his composition, in a separate form, and if he does so he
is entitled to copyright in such composition when so published for
the same term as if such publication were the first publication, but
without prejudice to the right of the publisher or proprietor to pub-
lish the same as part of such periodical work.

In order to provide against the suppression of books of importance
to the public, the Judicial Committee of the Privy Council are em-
powered, on complaint that the proprietor of the copyright in any
book after the death of its author has refused to republish or allow

I92 THE QUESTION OF COPYRIGHT.

the republication of the same, and that by reason of such refusal
such book may be withheld from the public, to grant a license to
such complainant to publish such book in such manner and subject
to such conditions as they think fit, and the complainant may publish
such book accordingly.

The whole of this article is subject to the limitations contained in
the subsequent articles of this chapter.

It applies — ■

(a) To all books published after 1st July, 1842.

(/>) To all books published before that day in which copyright was
then subsisting, unless such copyright was vested in any pub-
lisher or other person who acquired it for any consideration
other than that of natural love or affection, in which case such
copyright endures for the term then provided for by law, unless
the author, if living on that day, or if he were then dead his
personal representative, and (in either case) the proprietor of
the copyright, registered before the expiration of the term of
copyright to which they were then entitled, consent to accept
the benefits of the Act 5 & 6 Vict. c. 45 in a form provided in
a schedule therein.

Article 6.

Who may obtain Copyright in Books.

In order that copyright in a published book may be obtained under
the provisions of Article 5, the book must in all cases be published
in the United Kingdom. The author or other person seeking to
entitle himself to copyright may be either —

(a) A natural born or naturalized subject of the Queen, in which
case his place of residence at the time of the publication of
the book is immaterial ; or

(6) A person who at the time of the publication of the book in
which copyright is to be obtained owes local and temporary
allegiance to Her Majesty by residing at that time in some
part of Her Majesty's dominions.

It is probable, but not certain, that an alien friend who publishes
a book in the United Kingdom while resident out of Her Majesty's
dominions, acquires copyright throughout Her Majesty's dominions
by such publication.

Article 7.
Previous and Contemporary Publication out of the United Kingdom.

No copyright in a book published in the United Kingdom can be
obtained under Article 5, if the book has been previously published
by the author in any foreign country, but the contemporaneous pub-
lication of a book in a foreign country and in the United Kingdom
does not prevent the author from obtaining copyright in the United
Kingdom.

It is uncertain whether an author obtains copyright by publishing
a book in the United Kingdom, after a previous publication thereof
in parts of Her Majesty's dominions out of the United Kingdom.

It is uncertain whether an author acquires copyright under Article
5 in any part of Her Majesty's dominions out of the United Kingdom
(apart from any local law as to copyright which may be in force there)
by the publication of a book in such part of Her Majesty's dominions.

Article 8.

No Copyright in immoral Publications.

No copyright can exist in anything in which copyright would other-
wise exist if it is immoral, irreligious, seditious, or libelous, or if it
professes to be what it is not, in such a manner as to be a fraud upon
the purchasers thereof.

Article 9.

What is Infringement of Copyright in a Book, and what not — Fair
Use of Books.

The owner of the copyright in a book is not entitled to prevent
other persons from publishing the matter contained in it if they
invent or collect it independently, nor to prevent them from making
a fair use of its contents in the composition of other books.

The question, what is a fair use of a book, depends upon the cir-
cumstances of each particular case, but the following ways of using
a book have been decided to be fair :

(a) Using the information or the ideas contained in it without

copying its words or imitating them so as to produce what
is substantially a copy.

(b) Making extracts (even if they are not acknowledged as such)

194 THE QUESTION OF COPYRIGHT.

appearing, under all the circumstances of the case, reason-
able in quality, number, and length, regard being had to
the object with which the extracts are made and to the sub-
jects to which they relate.

afterward independently consulted by the author of another
book on the same subject.

(d) Using one book on a given subject for the purpose of checking

the results independently arrived at by the author of another
book on the same subject.

An abridgment may be an original work if it is produced by a fair
use of the original or originals from which it is abridged, but the re-
publication of a considerable part of a book is an infringement of the
copyright existing in it, although it may be called an abridgment,
and although the order in which the republished parts are arranged
may be altered.

Article io.

Crown Copyright.

It is said that Her Majesty and her successors have the right of
granting by patent from time to time to their printers an exclusive
right to print the text of the authorized version of the Bible, of the
Book of Common Prayer, and possibly the text of Acts of Parliament.

Article ii.

University Copyright.

The Universities of Oxford, Cambridge, Edinburgh, Glasgow, St.
Andrew's, and Aberdeen, each college or house of learning at the
universities of Oxford and Cambridge, Trinity College, Dublin, and
the colleges of Eton, Westminster, and Winchester, have forever
the sole liberty of printing and reprinting all such books as have been
or hereafter may be bequeathed or given to them, or in trust for them
by the authors thereof, or by their representatives, unless they were
given or bequeathed for any limited term.

Article 12.

How such Right forfeited.

The exclusive right mentioned in the last article lasts so long only
as the books or copies belonging to the said universities or colleges

are printed only at their own printing presses within the said univer-
sities or colleges respectively, and for their sole benefit and advan-
tage.

If any university or college delegates, grants, leases, or sells its
copyright or exclusive right of printing books granted by 15 Geo. 3.
c. 53, or any part thereof, or allows or authorizes any person to print
or reprint the same, the privilege granted by the said Act becomes
void and of no effect, but the universities or colleges may sell the
copyrights bequeathed to them as for the terms secured to authors by
the 8 Anne c. 19.

Article 13.

Term of Copyright in Dramatic Pieces.

The author, or the assignee of the author, of any tragedy, comedy,
play, opera, farce, or any other dramatic piece or entertainment, or
musical composition not printed and published by such author or
assignee, has, as his own property, the sole liberty of representing or
causing to be represented or performed, any such dramatic piece or
musical composition at any place of dramatic entertainment whatever
in Her Majesty's dominions (possibly in perpetuity, but more proba-
bly for) whichever is the longer of the two following terms, viz. —

(1) Forty-two years from the first public representation of such

dramatic piece or musical composition.

(2) The life of the author and a further term of seven years begin-

ning from his death.

The singing of a single song of a dramatic character in a dramatic
manner may amount to a dramatic entertainment within the meaning
of this article.

Anyplace at which a dramatic entertainment is given [? for profit]
on any particular occasion is a place of dramatic entertainment within
the meaning of this article.

Article 14.
Condition of Copyright in Dramatic Pieces.

The exclusive right of representing or performing a dramatic piece
or musical composition cannot be gained if such dramatic piece or
musical composition has been printed and published as a book before
the first representation thereof.

I96 THE QUESTION OF COPYRIGHT.

Or, if it has been publicly represented or caused to be represented
by the author or his assigns in any place out of Her Majesty's domin-
ions before it was publicly represented in them, except under the
International Copyright Act.

Articlk 15.

Copyright in a book containing or consisting of a dramatic piece
or musical composition is a right distinct from the right to represent
such dramatic piece or musical composition on the stage, and no as-
signment of the copyright of any such book conveys to the assignee
the right of representing or performing such dramatic piece or mu-
sical composition unless an entry of such assignment is made in the
registry book mentioned in Article 23, expressing the intention of
the parties that such right should pass.

Article 16.

Representation of a Drama no Infringement of Copyright,

A dramatic piece or musical composition published as a book may
(it seems probable) be publicly represented without the consent of
the author or his assigns.

Article 17.

Dramatization of Novels.

The public representation of a dramatic piece constructed out of a
novel is not an infringement of the copyright of the author of the
novel or his assigns, but the printing and publication as a book of
such dramatic piece so represented may be such an infringement.

If two persons independently of each other convert a novel into a
dramatic piece, each has an exclusive right of representing his own
dramatic piece, though one of them may be the author of the novel
so dealt with and though the two pieces may have parts in common.

Article 18.

Infringement of Copyright in a Musical Composition.

Copyright in a musical composition is infringed when a substantial
portion of the music in which copyright exists is reproduced either
without any alteration or with such alterations as are required to

adapt it to a different purpose or instrument, the alterations being of
such a character that the substantial identity between the original and
the altered version can be recognized by the ear.

Article 19.
Copyright in Lectures.

The author of any lecture, or his assign, has by statute the sole
right of publishing any lecture, of the delivery of which notice in
writing has been given to two justices living within five miles from
the place where such lecture is delivered two days at least before it
is delivered, unless such lecture is delivered in any university, pub-
lic school, or college, or on any public foundation, or by any person
in virtue of or according to any gift, endowment, or foundation.

The author of any lecture has [probably] at common law the same
right as by statute, without giving such notice as is required by
statute, but he cannot recover the penalties provided by the Act and
specified in Article 35, for an infringement of his copyright.

Article 20.

Every person who makes or causes to be made any new and original
sculpture, or model, or copy, or cast, . . . : has the sole right
therein for the term of 14 years from first putting forth or publishing
the same, provided that the proprietor causes his name, with the date,
to be put on every such thing before it is published. If the proprietor
be living at the end of the term of 14 years, his right returns to him
for a further term of 14 years, unless he has divested himself thereof.

Article 21.

The author, being a British subject or resident within the domin-
ions of Her Majesty, of any original painting, drawing or photo-
graph, not having been sold before the 29th July, 1862, has the sole

1 Here is a reference to a note, scheduling the usual subjects of
sculpture, but explaining that the section of the law here concerned
" is a miracle of intricacy and verbosity" and involves much doubt.

198 THE QUESTION OF COPYRIGHT.

and exclusive right of copying, engraving, reproducing, and multi-
plying such painting or drawing, and the design thereof, or such
photograph and the negative thereof, by any means or of any size,
whether made in the Queen's dominions or not, for the term of his
life and seven years after his death, but this right does not affect the
right of any other person to represent any scene or object represented
by any such painting.

If any painting or drawing, or the negative of any photograph,
hereinbefore mentioned, is made by the author for or on behalf of
any other person for a good or valuable consideration, such person is
entitled to copyright therein.

If any such thing is, after the 29th July, 1862, for any such con-
sideration transferred for the first time by the owner to any other
person, the owner may, by an agreement in writing signed at or be-
fore the time of such transfer by the transferee, reserve the copy-
right to himself, or he may, by an agreement in writing signed by
himself or by his agent duly authorized, transfer the copyright to
such transferee. (If no such agreement in writing is made, the
copyright in such painting ceases to exist.)

Article 22.
Copyright in Engravings.

Every one has for 28 years from the first publishing thereof the
sole right and liberty of multiplying, by any means whatever, copies
of any print of whatever subject which he has —

(a) Invented or designed, graved, etched, or worked in mezzotinto

or chiaro-oscuro ; or which he has —
(a) From his own work, design, or invention, caused or procured

to be designed, engraved, etched, or worked in mezzotinto

or chiaro-oscuro ; or which he has —
(V) Engraved, etched, or worked in mezzotinto or chiaro-oscuro. or

caused to be engraved, etched, or worked from any picture,

drawing, model, or sculpture, either ancient or modern :

Provided that such prints are truly engraved with the name of the
proprietor on each plate and printed on every print.

Prints taken by lithography and other mechanical processes are
now upon the same footing as engravings.

199

Article 23.
The Registration of Books.

A book of registry must be kept at Stationers' Hall, in which the
proprietor of copyright in any book, or of the right of representation
of any dramatic piece or musical composition, whether in manuscript
or otherwise, may upon the payment of a fee of $s. enter in the reg-
ister the particulars stated in the form given in the foot-note.1

The proprietor of the copyright in any encyclopaedia, review,
magazine, or periodical work, or other work published in a series, is
entitled to all the benefit of registration on entering in the book of,
registry the title of such work, the time of publishing the first volume
or part, and the name and place of abode of the proprietor and pub-
lisher when the publisher is not also the proprietor.

Every such registered proprietor may assign his interest or any
portion of his interest by making an entry in the said book of such
assignment in the form given in the foot-note.2

Licenses affecting any such copyright may also be registered in
the said register.

Any person aggrieved by any such entry may apply to the High
Court, or any judge thereof, to have such entry expunged or varied,
and the court may make such order for that purpose as it thinks just.

1 (a) Or

ginal Entry of

Proprietorship

of Copyright of

a Book.

Time of mak-
ing the En-
tries.

Title of the
Book.

Name of the
Publisher and
Place of Publi-
cation.

Name and
Place of Abode
of the Proprie-
tor of the Copy-
right.

Date of First
Publication.

s {6) Form of Entry of Assignment of Copyright in any Book previously
registered.

Date of Entry.

Title of Book.

Set out the Title and refer to the
Page of the Registry Book in which
the Original Entry of the Copyright
thereof is made.

Assignor of Assignee of
Copyright. Copyright.

200 THE QUESTION OF COPYRIGHT.

It is a misdemeanor to make or cause to be made any false entry
in such book wilfully.

The officer in charge of the book is bound to give sealed and
certified copies of the entries contained therein on payment of a fee
of 5^., and such copies are prim & facie proof of the matters alleged
therein.

The fee for the registration of university copyrights and for copies
of them is 6d., and they may be inspected without fee.

Article 24
Effect of Registration in case of Books.

No proprietor of copyright in any book can take any proceedings
in respect of any infringement of his copyright unless he has, before
commencing such proceedings, caused an entry to be made in the
said register under the last article.

The omission to make such entry does not affect the copyright in
any book, but only the right to sue or proceed in respect of the
infringement thereof.

Article 25.
Registration in respect of Dramatic Copyright.

The remedies which the proprietor of the sole liberty of represent-
ing any dramatic piece has under Article 32 are not prejudiced by
an omission to make any entry respecting such exclusive right in the
said register.

Article 26.
Registration of Copyright in Paintings, etc.

A book entitled the Register of Proprietors of Copyright in Paint-
ings, Drawings, and Photographs, must be kept at the Hall of the
Stationers' Company.

A memorandum of every copyright to which any person is entitled
under Article 21, and of every subsequent assignment of any such
copyright, must be entered therein ; such memorandum must contain
a statement of :

(a) The date of such agreement or assignment ;

(o) The names of the parties thereto ;

copyright is vested by virtue thereof, and of the author of
the work ;
(d) A short description of the nature and subject of such work,
and, if the person registering so desires, a sketch, outline,
or photograph of the work in addition thereto.

No proprietor of any such copyright is entitled to the benefit of 25
& 26 Vict. c. 68 until such registration, and no action can be main-
tained, nor any penalty be recovered, in respect of anything done
before registration ; but it is not essential to the validity of a regis-
tered assignment that previous assignments should be registered.

The three paragraphs of Article 23, relating to the correction of
errors in the register, the making of false entries, and the giving of
certificates, apply also to the book in this article mentioned.

Article 27.

Penalties for infringing Copyright in Books.

Every one is liable to an action who, in any part of the British
dominions —

(a) Prints or causes to be printed, either for sale or exportation,

any book in which there is subsisting copyright, without the
consent in writing of the proprietor ;

(b) Imports for sale or hire any such book so having been unlaw-

fully printed from parts beyond the sea ;

causes to be sold, published, or exposed to sale or hire, or
has in his possession for sale or hire any book so unlawfully
printed or imported.

The action must be brought in a Court of Record and within
twelve months after the offence.

Article 28.

Special Penalty for unlawfully importing Copyright Books.

The following consequences are incurred by every one, except the
proprietor of the copyright of any book, or some person authorized
by him, who imports or brings, or causes to be imported or brought
[for sale or hire], into the United Kingdom, or into any other part of
the British dominions, any printed book in which there is copyright,

202 THE QUESTION OF COPYRIGHT.

first composed, written, or printed [and published] in any part of
the United Kingdom, and reprinted in any country or place out of
the British dominions ;

Or, who knowingly sells, publishes, or exposes to sale, or lets to
hire, or has in his possession for sale or hire any such book, that is
to say :

(a) Every such book is forfeited, and must be seized by every

officer of Customs or Excise, and in that case must be
destroyed by such officer.

(b) The person so offending must, upon conviction before two

justices, be fined 10/. for every such offence, and double
the value of every copy of any such book in respect of
which he commits any such offence.

Provided that if the Legislature or proper legislative authorities
in any British possession pass an Act or make an Ordinance, which,
in the opinion of Her Majesty, is sufficient for the purpose of secur-
ing to British authors reasonable protection within such possessions,
Her Majesty may approve of such Act, and issue an Order in Council
declaring that so long as the provisions of such Act remain in force,
the prohibition hereinbefore contained shall be suspended so far as
regards such colony.

Article 29.

Pirated Copies forfeited to Registered Owner.

All copies of any book in which there is a duly registered copyright
unlawfully printed or imported without the consent in writing under
his hand of the registered proprietor of the copyright are deemed to
be the property of the registered proprietor of such copyright, and
he may sue for and recover the same, with damages for the detention
thereof, from any person who detains them after a demand thereof
in writing.

Article 30.

Copies of Books to be delivered for Public Libraries, and Penalties
for Non-delivery.

A copy of the first edition and of every subsequent edition contain-
ing additions and alterations of every book published in any part of
the British dominions must be delivered at the British Museum

between 10 A. m. and 4 p. m. on some week-day, other than Ash
Wednesday, Good Friday, or Christmas Day, within a month after
its publication, if it is published in London, within three months if
it is published in the United Kingdom elsewhere than in London,
and within twelve months if it is published in any other part of the
British dominions.

It may be delivered to any person authorized by the Trustees of
the British Museum to receive it, and such person must give a receipt
in writing therefor.

Copies of every edition of every book published must, if demanded,
be delivered to an officer of the Stationers' Company for each of the
following libraries : the Bodleian Library, the Cambridge University
Library, the Advocates Library at Edinburgh, and the Library of
Trinity College, Dublin.

The demand, in writing, must be left at the place of abode of the
publisher, within twelve months after the publication of the book,
and the copies must be delivered within one month after such de-
mand, either to the Stationers' Company or to the said libraries, or
to any one authorized to receive the copies on their behalf.

The copy for the British Museum must be bound, stitched, or
sewed together, and upon the best paper on which the book is
printed.

The copies for the other libraries mentioned must be upon the
paper of which the largest number of copies of the book or edition are
printed for sale, in the like condition as the copies prepared for sale
by the publisher.

The copies must in each case include all maps and prints belong-
ing thereto.

Any publisher making default in such delivery as is hereinbefore
mentioned, is liable to a maximum penalty of 5/. and the value of
the copy not delivered. This penalty may be recovered upon sum-
mary proceeding before two justices of the peace, or a stipendiary
magistrate, at the suit of the librarian, or other officer properly
authorized, of the library concerned.

Article 31.
Penalty for Offences against University Copyright.

Every one incurs the penalties hereinafter mentioned who does any
of the following things with any book of which the copyright is

204 THE QUESTION OF COPYRIGHT.

vested in any university or college under Article n ; (that is to
say,)

(a) Who prints, reprints, or imports, or causes to be printed,

reprinted, or imported any such book.
(3) Knowing the same to be so printed or reprinted, sells, pub-
lishes, or exposes to sale, or causes to be sold, published, or
exposed to sale, any such book.

The penalties for the said offences are :

(a) The forfeiture of every sheet being part of such book to the
university or college to which the copyright of such book
belongs, which university or college must forthwith cancel
and make waste paper of them.

(6) One penny for every sheet found in the custody of such person
printing or printed, published or exposed to sale, half to go
to the Queen, and half to the informer.

None of the penalties aforesaid can be incurred —

Unless the title to the copyright of the book in respect of which
the offence was committed was registered either before 24th
June, 1775, or within two months after the time when the
bequest or gift of the copyright of any book came to the
knowledge of the vice-chancellor of any university or the
head of any college or house of learning ;

Or unless the clerk of the Stationers' Company, being duly re-
quired to make the entry, refuses to do so, and the univer-
sity advertises such refusal in the Gazette, in which case the
clerk incurs a penalty of 20/. to the proprietors of the
copyright.

The penalty must be sued for in the High Court.

Article 32.

Penalty for performing Dramatic Pieces.

Every person who, without the consent in writing of the author or
other proprietor first obtained, represents or causes to be represented
at any place of dramatic entertainment in the British dominions any
dramatic piece or musical composition is liable to pay to the author
or proprietor for every such representation an amount not less than
\os., or the full amount of the benefit or advantage arising from

such representation, or the injury or loss sustained by the plaintiff
therefrom, whichever may be the greater damages.

The penalty may be recovered in any court having jurisdiction in
such cases.

Article 33.

Penalty for Infringement of Copyright in Works of Art.

Every one (including the author, when he is not the proprietor)
commits an offence who, without the consent of the proprietor of
the copyright therein, does any of the following things with regard
to any painting, drawing, or photograph in which copyright exists ;
(that is to say,)

(a) Repeats, copies, colorably imitates, or otherwise multiplies,
for sale, hire, exhibition, or distribution, any such work ;
or the design thereof ;

(o) Causes or procures to be done anything mentioned in (a) ;

any such purposes, imports into the United Kingdom any
such repetition, copy, or other imitation of any such work
or of the design thereof, knowing that it has been unlaw-
fully made ;

(d) Causes or procures to be done, any of the things mentioned

in (c) ;

(e) Fraudulently signs or otherwise affixes or fraudulently causes

to be signed or otherwise affixed to or upon any painting,
drawing, or photograph or the negative thereof, any name,
initials, or monogram.

(f) Fraudulently sells, publishes, exhibits, or disposes of, or

offers for sale, exhibition, or distribution, any painting,
drawing, or photograph, or negative of a photograph, hav-
ing thereon the name, initials, or monogram of a person
who did not execute or make such work ;

(g) Fraudulently utters, disposes of, or puts off, or causes to be

uttered or disposed of, any copy or colorable imitation of
any painting, drawing, or photograph, or negative of a
photograph, whether there is subsisting copyright therein or
not, as having been made or executed by the author or
makers of the original work from which such copy or imita-
tion has been taken ;

206 THE QUESTION OF COPYRIGHT.

(//) Makes or knowingly sells, publishes, or offers for sale, any
painting, drawing, or photograph which after being sold or
parted with by the author or maker thereof, has been altered
by any other person by addition or otherwise, or any copy
of such work so altered, or of any part thereof, as the
unaltered work of such author or maker during his life and
without his consent.

Every one who commits any of the offences (a), (6), (<•), or (d),
forfeits to the proprietor of the copyright for the time being a sum
not exceeding 10/. , and all such repetitions, copies, and imitations
made without such consent as aforesaid, and all negatives of photo-
graphs made for the purpose of obtaining such copies.

Every one who commits any of the offences (e), (/), (g), or (A)
forfeits to the person aggrieved a sum not exceeding 10/., or double
the price, if any, at which all such copies, engravings, imitations,
or altered works were held or offered for sale, and all such copies,
engravings, imitations, and altered works are forfeited to the person
whose name, initials, or monogram is fraudulently signed or affixed,
or to whom such spurious or altered work is fraudulently or falsely
ascribed ; provided that none of the last-mentioned penalties are
incurred unless the person to whom such spurious or altered work is
so fraudulently ascribed, or whose initials, name, or monogram is so
fraudulently or falsely ascribed, was living at or within 20 years next
before the time when the offence was committed.

The penalties hereinbefore specified are cumulative, and the per-
son aggrieved by any of the acts before mentioned may recover
damages in addition to such penalties, and may in any case recover
and enforce the delivery to him of the things specified, and recover
damages for their retention or conversion.

The penalties may be recovered either by action or before two
justices or a stipendiary magistrate.

Article 34.

Importation of pirated Works of Art prohibited.

The importation into the United Kingdom of repetitions, copies,
or imitations of paintings, drawings, or photographs wherein, or iq
the design whereof, there is an existing copyright under 25 & 26
Vict. c. 68, or of the design thereof, or of the negatives of photo-

graphs, is absolutely prohibited, except by the consent of the pro-
prietor of the copyright or his agent authorized in writing.

Article 35.
Penalty for pirating Lectures.

Every person commits an offence who, having obtained or made a
copy of any lecture, prints or otherwise copies and publishes the
same, or causes it to be so dealt with without the leave of the author
or his assigns ;

Or, who, knowing it to have been printed or copied or published
without such consent, sells, publishes, or exposes it to sale or causes
it to be so dealt with ;

Every person who commits such offence forfeits such printed or
copied lectures, together with one penny for every sheet thereof
found in his custody, half to the Queen and half to the informer.

The printing and publishing of any lecture in any newspaper
without leave is an offence within the meaning of this article.

This section does not apply to the publication of lectures which
have been printed and published as books at the time of such pub-
lication.

The penalty must be sued for in the High Court.

Article 36.
Penalty for pirating Sculptures.

Every person is liable to an action for damages who makes or
imports, or causes to be made or imported, or exposed to sale, or
otherwise disposed, anything of which the copyright is protected by
the 54 Geo. c. 56.

This article does not apply to any person who purchases the right
or property of anything protected by the said Act of the proprietor
by a deed in writing, signed by him with his own hand in the pres-
ence of and attested by two credible witnesses.

Article 37.
Penally for pirating Prints and Engravings.

Every person commits an offence who, without the consent of the
proprietor in writing, signed by him and attested by two witnesses —

208 THE QUESTION OF COPYRIGHT.

(a) In any manner copies and sells, or causes or procures to be
copied and sold, in whole or in part, any copyright print ;
or

(l>) Prints, reprints, or imports for sale any such print, or causes
or procures any such print to be so dealt with ; or

(<r) Knowing the same to be so printed or reprinted without the
consent of the proprietors publishes, sells, exposes to sale,
or otherwise disposes of any such print, or causes or pro-
cures it to be so dealt with.

Every person committing any such offence is liable to an action
for damages in respect thereof, and forfeits to the proprietor, who
must forthwith cancel and destroy the same, the plate on which any
such print is copied, and every sheet being part of such print, or
whereon such print is copied, and also five shillings for every sheet
found in his custody in respect of which any such offence is com-
mitted, half to the Queen and half to the informer.

The penalty must be sued for in the High Court within six months
after the offence.

Article 38.

International Copyright may be granted in certain Cases.

Copyright in books, dramatic pieces and musical compositions,
paintings, drawings, and photographs, sculptures, engravings, and
prints, first published in foreign countries, may be granted to the
authors of such works, in the manner, to the extent, and on the
terms hereinafter mentioned, if what Her Majesty regards as due
protection has been secured by the foreign country in which such
works are first published for the benefit of persons interested in
similar works first published in Her Majesty's dominions.

Article 39.
Orders in Council as to International Copyright.

Her Majesty may by Order in Council (stating as the ground for
issuing the same that such protection as aforesaid has been secured
as aforesaid) direct that the authors of all or any of the things men-
tioned in the last Article, being first published in any such foreign
country as is mentioned in that Article, shall have copyright therein
in Her Majesty's dominions for a term, to be specified in the Order,

not exceeding the term of copyright which authors of things of the
same kind first published in the United Kingdom are entitled to by
law at the date of the Order.

The terms so to be specified and the terms for registration and
delivery of copies of books as hereinafter mentioned may be different
for works first published in different foreign countries, and for differ-
ent classes of such works.

Article 40.

Term of International Copyright.

The authors of the works specified in the Order are entitled to
copyright therein as follows —

Under 5 & 6 Vict. c. 45, and the other Acts relating to copyright
in books, except the sections relating to the deposit of copies in
certain libraries, if the works specified in the Order are books ;

Under the Engraving Copyright Acts, the Sculpture Copyright
Acts, or the Paintings Copyright Act respectively, if the works
specified in the Order are prints, engravings, articles of sculpt-
ure, pictures, drawings, or photographs ;

Under the Dramatic Copyright Acts, provided that such copyright
does not extend 1 1 prevent fair imitations or adaptations to the
English stage of any dramatic piece or musical composition pub-
lished in any foreign country, if the works specified in the
Order are dramatic pieces or musical compositions, unless the
Order directs that it shall extend to them.

Subject in each case to such limitations as to the duration of the
right as may be specified in the Order, and subject also to the pro-
visions hereinafter contained.

Article 41.
No Work Copyright without Regi stration.

No author of any such work as is referred to in this chapter is en-
titled to any benefit under the provisions contained in it, unless such
work is registered, and a copy of the first edition and of every sub-
sequent edition containing additions or alterations, but of no other
editions of it, is delivered at the Hall of the Stationers' Company,
14

210

THE QUESTION OF COPYRIGHT.

within a time to be specified in the Order of Council, and in the
manner prescribed in the schedule in the footnote hereto.1

The three paragraphs preceding the last paragrapli of Article 23
apply to such entries.

The copy so delivered must within one month of its delivery be
deposited in the British Museum by the officer of the Stationers'
Company.

Article 42.
No International Copyright in Newspaper Articles.

Articles of political discussion published in any newspaper, or

1 Schedule.

The register
must show, if
the work is—

The title

Name and place
of abode of
author (un-
less the book
isanonymous,
7 & 8 Vict. c.
12. s. 7).

Name and place
of abode of
proprietor of
copyright.

Time and

place 01
first publi-
cation.

Dramatic piece
or musical
composition
printed.

Do. and

time and
place of first
representa-
tion or per-
formance.

Dramatic piece
or musical
composition
in MS.

Do.

Do. of in-
ventor, de-
signer, or en-
graver.

Do. First

publication
in foreign
country.

Descriptive title

Short descrip-
tion of nature
and subject of
work, and a
sketch outline
or photo-
graph there-
of, if the per-
son register-
ing pleases.

Do, of mak-

Do.

Painting, Draw-
ing, or photo-
graph.

Name and abode
of author.

periodical, in any foreign country may, if the source from which the
same are taken is acknowledged, be republished or translated in any
newspaper or periodical in this country, notwithstanding anything
hereinbefore or hereinafter contained.

Articles on other subjects so published may be dealt with in the
same manner on the same condition, unless the author has signified
his intention of preserving the copyright therein, and the right of
translating the same, in some conspicuous part of the newspaper
or periodical in which the same was first published, in which case
such publication is to be regarded as a book within the meaning of
Article 5.

Article 43.
Translations of Foreign Books.

Her Majesty may, by Order in Council, direct that the authors of
books published, and of dramatic pieces first publicly represented, in
the foreign countries referred to in Article 38, may, for a period not
exceeding five years from the publication of an authorized translation
thereof, prevent the publication in the British dominions of any un-
authorized translation thereof, and, in the case of dramatic pieces,
the public representation of any such translation.

Upon the publication of such Order the law in force for the time
being for preventing the infringement of copyright, and the sole
right of representing dramatic pieces, in the British dominions applies
to the prevention of the publication of such unauthorized translation.

Provided that no such Order prevents fair imitations or adapta-
tions to the English stage of any dramatic piece or musical composi-
tion published in any foreign country.

But Her Majesty may by Order in Council direct that this proviso
shall not apply to the dramatic pieces protected under the original
Order in Council.

If a book is published in parts, each part is regarded, for the pur-
poses of this article, as a separate book.

Article 44.

Conditions of International Copyright in Translations.

No author, and no personal representative of any author, is en-
titled to the benefit of the provisions of the last preceding article
unless he complies with the following requisitions :

212 THE QUESTION OF COPYRIGHT.

(a.) The original work from which the translation is to be made
must be registered, and a copy thereof deposited in the United
Kingdom, in the manner required for original works by the
said International Copyright Act, within three calendar months
of its first publication in the foreign country :

(b.) The author must notify on the title-page of the original work,
or, if it is published in parts, on the title-page of the first
part, or, if there is no title-page, on some conspicuous part of
the work, that it is his intention to reserve the right of trans-
lating it :

(c.) The translation sanctioned by the author, or a part thereof,
must be published either in the country mentioned in the
Order in Council by virtue of which it is to be protected, or
in the British dominions, not later than one year after the
registration and deposit in the United Kingdom of the origi-
nal work, and the whole of such translation must be published
within three years of such registration and deposit :

((/.) Such translation must be registered, and a copy thereof depos-
ited in the United Kingdom, within a time to be mentioned
in that behalf in the Order by which it is protected, and in
the manner provided by the said International Copyright Act
for the registration and deposit of original works :

(e.) In the case of books published in parts, each part of the origi-
nal work must be registered and deposited in this country,
in the manner required by the said International Copyright
Act, within three months after the first publication thereof in
the foreign country :
(/.) In the case of dramatic pieces the translation sanctioned by the
author must be published within three calendar months of the
registration of the original work :
(g.) The above requisitions apply to articles originally published in
newspapers or periodicals, if the same be afterward published
in a separate form, but not to such articles as originally pub-
lished.

Article 45.
Importation of Pirated Works.

The importation into any part of the British dominions of copies
of any work of literature or art, the copyright in which is protected

by the provisions of this chapter, and of unauthorized translations
thereof, is absolutely prohibited, unless the registered proprietor of
the copyright therein, or his agent authorized in writing, consents,
and the provisions of Article 28 apply to the importation of such
copies into any part of the British dominions.1

1 Since the preparation by Sir James Stephen of this digest, the pro-
visions in the above articles referring to International Copyright have
been modified by the acceptance on the part of Great Britain of the
provisions of the Convention of Berne. This Convention was de-
clared to be in force between Great Britain and the other States
which were parties to it, by an order in Council dated December 5th,
1887.

The text of the Convention is given later in this volume.

Editor.

XIV.

EXTRACT FROM THE REPORT OF THE
BRITISH COMMISSION APPOINTED IN
1878 BY THE QUEEN, FOR THE IN-
VESTIGATION OF THE SUBJECT OF
COPYRIGHT.

TO THE QUEEN'S MOST EXCELLENT MAJESTY.

We, Your Majesty's Commissioners, appointed to
make inquiry with regard to the laws and regula-
tions relating to Home, Colonial, and International
Copyright, humbly submit to Your Majesty this our
Report —

1. We deem it expedient to consider the Home, Colonial, and
International divisions of the subject, in the order in which they are
mentioned in Your Majesty's Commission, and thus first to notice

HOME COPYRIGHT.

2. The first object to which we directed our attention in relation to
Home Copyright, was to obtain a clear and systematic view of the
law in force upon the subject in this country.

3. We find that it relates to copyright in seven distinct classes of
works, namely, —

(1.) Books ;

) Musical compositions ;

) Dramatic pieces ;

) Lectures ;

) Engravings and other works of the same kind ;

) Paintings, drawings, and photographs ; and

(7.) Sculpture.

REPORT OF THE BRITISH COMMISSION. 21 5

4. The law as to copyright in designs did not appear to us to fall
within the terms of Your Majesty's Commission. It differs in many
important particulars from the other matters which we have men-
tioned, and it has been recently made the subject of legislation.

5. The law of England, as to copyright in the matters above
enumerated, consists partly of the provisions of fourteen Acts of
Parliament, which relate in whole or in part to different branches of
the subject, and partly of common law principles, nowhere stated in
any definite or authoritative way, but implied in a considerable num-
ber of reported cases scattered over the law reports.

6. Our colleague, Sir James Stephen, has reduced this matter to
the form of a Digest, which we have annexed to our Report, and
which we believe to be a correct statement of the law as it stands.1

7. The first observation which a study of the existing law suggests
is that its form, as distinguished from its substance, seems to us bad.
The law is wholly destitute of any sort of arrangement, incomplete,
often obscure, and even when it is intelligible upon long study, it is
in many parts so ill-expressed that no one who does not give such
study to it can expect to understand it.

8. The common law principles which lie at the root of the law
have never been settled. The well-known cases of Millar vs. Tay-
lor, Donaldson vs. Becket, and Jeffries vs. Boosey, ended in a differ-
ence of opinion amongst many of the most eminent judges who have
ever sat upon the Bench.

9. The fourteen Acts of Parliament which deal with the subject
were passed at different times between 1735 and 1875. They are
drawn in different styles, and some are so drawn as to be hardly
intelligible. Obscurity of style, however, is only one of the defects
of these Acts. Their arrangement is often worse than their style.
Of this the Copyright Act of 1842 is a conspicuous instance.

10. The piecemeal way in which the subject has been dealt with
affords the only possible explanation of a number of apparently
arbitrary distinctions between the provisions made upon matters
which would seem to be of the same nature. Thus —

(a.) The term of copyright in books, and in printed and published
dramatic pieces and music, is the life of the author and
seven years after his death, or 42 years from the date of
publication, whichever is the longer.

1 See preceding chapter.

2l6 THE QUESTION OF COPYRIGHT.

(6.) The term of copyright in music not printed and published but
publicly performed is doubtful, and may perhaps be per-
petual.

(c.) The term of copyright in a lecture not printed and published
but publicly delivered is wholly uncertain. The term of
copyright in a lecture printed and published is the longer of
the two periods of 28 years and the life of the author. It
may perhaps be doubted whether the term of copyright in
a book consisting of a collection of lectures would differ
from the term of copyright in other books.

(</.) The term of copyright in engravings, etc., is 28 years from
publication; in paintings, etc., the artist's life and seven
years ; in sculpture, 14 years from the first " putting forth
or publishing " of the work (an indefinite phrase), 14 years
more being given to the sculptor if he is living at the end
of the first term.

11. Other singular distinctions exist as to the law relating to reg-
istration of copyrights. No system of registration is provided for
dramatic copyright , or for copyright in lectures or engravings. Such
a system is provided for copyright in books and paintings, but its
effect varies. Registration must in either case precede the taking of
legal proceedings for an infringement of copyright, but after regis-
tration the owner of copyright in a book may, while the owner of
copyright in a painting may not, sue the persons who infringed his
copyright before registration.

12. The law is not only arbitrary in some points, but is incomplete
and obscure in others. The question whether there is such a thing
as copyright at common law, apart from statute, has never been
decided, and has several times led to litigation. Some sort of copy-
right has been recognized in newspapers, but it is impossible to say
what it is. It has been decided on the one hand that a newspaper
is not a "book," within the meaning of the Copyright Act of 1842,
and on the other hand that there is some sort of copyright in news-
papers, yet the courts have always leaned to the opinion that there is
no copyright independent of statute ;— at all events they have never
positively decided that there is.

13. Upon all these grounds we recommend that the law on this
subject should be reduced to an intelligible and systematic form.
This may be effected by codifying the law, either in the shape in

REPORT OF THE BRITISH COMMISSION. 2\y

which it appears in Sir James Stephen's Digest, or in any other which
may be preferred ; and our first, and, we think, one of our most
important, recommendations is that this should be done. Such a
process would, amongst other things, afford an opportunity for mak-
ing such amendments in the substance of the law as may be required.

14. We now proceed to discuss the subject in detail, following the
order of the Digest, and with reference to it. In the margin of the
Digest we have, wherever it was practicable, noted the alterations
which we recommend, so that it shows both what the law in our
opinion is, and what in our opinion it ought to be.

Unpublished Works.

15. With respect to unpublished documents or works of art, we
do not suggest any alteration in the law.

Necessity for Copyright. — The Royalty System.

16. With reference to copyright generally, we do not propose to
enter upon the history of the Copyright Laws, nor to discuss the
various questions that have from time to time been raised in connec-
tion with the principle involved in those laws. It is sufficient for the
present purpose to refer to the above-mentioned cases of Millar vs.
Taylor, Donaldson vs. Becket, and Jeffries vs. Boosey, and to the
debates that have taken place in Parliament, in which the arguments
on one side and the other are fully set forth. Taking the law as it
stands, we entertain no doubt that the interest of authors and of the
public alike requires that some specific protection should be afforded
by legislation to owners of copyright ; and we have arrived at the
conclusion that copyright should continue to be treated by law as a
proprietary right, and that it is not expedient to substitute a right to
a royalty defined by statute, or any other right of a similar kind.

17. We make special reference to a system of royalty, because, in
the course of our inquiry, it has been suggested that it would be ex-
pedient in the interest of the public, and possibly not disadvanta-
geous to authors, to adopt such a system in lieu of the existing law of
copyright ; and although the change has hardly been seriously urged
upon us as a practical measure, except by one witness, it is of so im-
portant a character that we desire to offer a few observations upon it.

18. The royalty system may be briefly described as a system under
which the author of a work of literature or art, or his assignee, would
not have the exclusive right of publication, but any person would be
entitled to copy or republish the work on paying or securing to the

2l8 THE QUESTION OF COPYRIGHT.

owner a remuneration, taking the form of a royalty or definite sum
prescribed by law, payable to the owner for each copy published.

19. The principal reason urged for the adoption of this system is
the benefit that it is supposed would arise to the public from the
early publication of cheap editions. It is now the usual practice of
publishers of the best class of literary works to publish first an ex-
pensive edition, then, after a period of greater or less duration, ac-
cording to the sale of the work, an edition at a medium price, and
finally, but often a good many years later, what are called popular
editions, at low prices. The advocates of the royalty system say that,
if it were adopted, the competition that would arise would compel
the original publishers to publish at cheap prices ; — that thus the
public would be able to procure books at once which, under the pres-
ent system, are kept beyond their reach by high prices ; — and that
the advantage to authors would be as great or greater than it now is,
since an extended sale might be expected to follow publication at
lower prices, and the royalty would be paid them even though their
works proved failures in a commercial point of view.

20. The opponents of the system say that it is notorious that
where one book pays the publisher for his outlay and risk, many are
complete failures and never pay even the cost of publishing ; — that,
if the royalty system were established, no publisher would take the
risk of the first publication, knowing that, if the work proved suc-
cessful, he would immediately have his reward snatched from his
grasp by the numerous publishers who would republish and under-
sell him ; — that it would be impossible for publishers to remunerate
authors at the rate they do now ; — that authors would lose the fair
remuneration they now obtain, and would often be deterred from
writing ; — and that many works, especially those involving long prep-
aration and large cost to the author or publisher, which would be
published under the present system, could never be brought out, on
account of the increased risk that would ensue from the royalty sys-
tem.

21. To meet these objections it has been suggested that there
should be a limited period from first publication, and that during
such period republication by any person, other than the author and
publisher, should not be allowed.

22. We have thus briefly noted some of the arguments for and
against the royalty system, but we think it unnecessary to discuss the
subject in greater detail, or to point out the practical difficulties which

REPORT OF THE BRITISH COMMISSION. 219

the introduction of such a scheme would necessarily involve, or how
those difficulties might possibly be more or less obviated, because we
are unable, after carefully considering the subject, to recommend for
adoption this change in the existing law. We venture to add, in con-
firmation of our view, that while the principle of copyright has been
recognized in almost every foreign State, in no one country has the
system of royalty been adopted, except in a modified form in Italy,
as pointed out in paragraph 39.

The Term of Copyright. — Books.

23. The term of copyright is the next subject to which our atten-
tion has been called. We have already used this as an illustration
of the anomalies and distinctions which have grown up in the law of
copyright. The term of copyright in books is for the life of the
author and 7 years after his death, or for 42 years from the date of
publication, whichever period may happen to expire last.

24. We purpose for the present to confine our remarks to copy-
right in books and other literary works comprehended under that
term — that is to say, "every volume, part or division of a volume,
pamphlet, sheet of letter-press, sheet of music, map, chart, or
plan, separately published."

25. It has been urged against the present regulations for the term
of copyright in books — 1st. That the period is not long enough : —
2dly. That copyrights in works by the same author generally ex-
pire at different dates : — 3dly. That, owing to the difficulty of verify-
ing the date of publication, it is scarcely possible to ascertain the
termination of the copyright. In addition to these objections, others
have been stated which it is needless for us to specify in this
place.

26. We have already stated that we consider some kind of pro-
tection in the nature of copyright desirable ; and it appears to us that
the existing terms are not more than sufficient, if indeed they are
sufficient, to secure that adequate encouragement and protection to
authors which the interests of literature, and therefore of the public,
alike demand from the State. We proceed, therefore, to call atten-
tion to the three objections above mentioned, to the present duration
of copyright.

27. First, the period is said not to be long enough. The chief
reasons for this assertion are that many works, and particularly those
of permanent value, are frequently but little known or appreciated

220 THE QUESTION OF COPYRIGHT.

for many years after they are published, and that they do not com-
mand a sale sufficient to remunerate the authors until a considerable
part of the term of copyright has expired. Some works, as, for in-
stance, novels by popular authors, command an extensive sale and
bring to the authors a large remuneration at once, but the case is
altogether different with others, such as works of history, books of a
philosophical or classical character, and volumes of poems. In some
instances works of these kinds have been known to produce scarcely
any remuneration, until the authors have died and the copyrights have
nearly expired, It is also urged that in the case of many authors
who make their living by their pens, their families are left without
provision shortly after their deaths, unless their works become profit-
able very soon after they are written.

28. These arguments and others of a like kind, which will be found
not only in the evidence we have taken, but in the debates in Par-
liament, are in our opinion of great weight, but on the other hand
we do not lose sight of the public interest, which, it has been urged
upon us, would be prejudiced by prolongation of copyright. Greater
freedom of trade and competition are said to be desirable, that
books may be more abundant in supply and cheaper in price.

29. The second objection to the present duration of copyright is,
that copyrights belonging to the same author generally expire at
different dates. That it is well founded is manifest, for if an author
writes several works, or one work in several volumes, which are pub-
lished at different times, as is frequently the case, the copyrights will
expire forty-two years from the respective dates of publication, unless
the author happens to live so long that the period of seven years
after his death is beyond forty-two years from the publication of his
latest work or volume.

30. Under the present system, moreover, copyright in an earlier
edition expires before copyright in the amendments in a later edition
of the same work. We have had evidence that in one case the first
and uncorrected edition of an important work was republished be-
fore the expiration of the copyright in the later and improved edi-
tions. But if the alteration in the existing term of copyright, which
we suggest hereafter, were adopted, namely, that it should be for the
life of the author and a fixed number of years after his death, all the
copyrights of the same author would expire at the same date, and it
would then be open to any publisher to put out a complete edition of
all the author's works, with all the improvements and emendations

REPORT OF THE BRITISH COMMISSION. 221

which have appeared in the last edition, in a uniform shape and at a
uniform price.

31. The third objection to the present duration of copyright is
that it is frequently difficult, if not impossible, to ascertain its termi-
nation, owing to the fact that the expiration of the period depends
upon the time of publication. It is in most cases easy to ascertain
the date of a man's death, but frequently impossible to fix with any
certainty the date of the publication of a book. Under the present
law it is uncertain what constitutes publication ; but whatever may
be a publication sufficient in law to set the period of copyright run-
ning, it generally takes place in such a manner that the precise date
is not noted even if known. It is sometimes said that the date
printed in the title-page of a book should be considered the date of
publication, but books are frequently post-dated, and in many cases
bear no date at all. This objection is one which, in our opinion,
should be removed.

32. The remedy which suggests itself to us as the most likely to
effect all the desired objects is, that instead of the period of copyright
being, as at present, a certain number of years from publication, it
should last for the life of the author and a fixed number of years
after his death.

33. We have been influenced in advising this change in the law
by the consideration that it will have the effect of assimilating the
term of copyright in books to that of copyright in works of fine art,
the duration of which, for reasons to be hereafter stated, is for the
life of the author and a certain number of years after his death. And
further, as this mode of computing the duration of copyright has been
adopted by the great majority of foreign countries, the change in our
law may facilitate the making of international copyright arrange-
ments with other States.

34. Before proceeding further on this point we think it right to
notice a suggestion that has been made to us, on the assumption that
the duration of copyright would continue to be for a fixed period of
years. It has been proposed that, instead of the present term of 42
years from publication, the original right should last for 28 years
only, but that it should be renewable for a further period of 14 or 28
years by registration by the author or his personal representatives ;
and this is, we learn, the law in the United States and Canada. The
reasons advanced for this proposal are, that if copyrights are sold,
publishers, as a rule, will not give more for the whole of the present

222 THE QUESTION OF COPYRIGHT.

term of 42 years than they would if there were only 28 years that
they could purchase ; that authors could thus, without any pecuniary
loss, sell their copyrights for the first period only, and, if their works
proved of great and lasting value, would not have finally parted
with all their interest, but would be entitled to the second term of 14
years, by which they or their families would receive a due reward for
their labors.

35. There is, no doubt, considerable force in the argument, but
we would observe that the advantages held out by the change of law
would not be secured unless, first, the copyright is sold, and secondly,
the author is debarred by law, not only from selling, in the first
instance, more than the copyright in the term of 28 years, but even
from giving any binding undertaking to secure to the purchaser,
either by registration or otherwise, the advantages of the subsequent
term of 14 years.

36. Now, whatever may be the practice in the United States and
Canada, we are satisfied from the evidence that in this country many
authors do not sell their copyrights, and in such cases no advantage
would arise from the proposed change. And, with respect to the
second point, we are not satisfied that the advantages expected from
the scheme counterbalance the disadvantage of interfering by law
with freedom of contract.

37. Should our suggestion, that copyright in future should endure
for the life of the author and a fixed number of years after his death,
be adopted, the proposal to divide the present, or any other fixed
term is of course inapplicable.

38. Assuming, therefore, that the duration of copyright is to be
for the life of the author and a certain number of years after his
death, we have next to consider what the number of years should be.
According to the existing law, the period in the case of books is life
and 7 years, or 42 years from publication, if that period is the last
to expire ; and the period for copyright in paintings, drawings, and
photographs has been fixed at life and seven years.

39. We find considerable variety in the terms fixed in other coun-
tries, but, putting aside the United States, which seem to have
adopted our existing term with modifications, we find that the more
important nations have adopted terms longer than our own. Thus,
the term in France is the life of the author and 50 years ; in Belgium,
life and 20 years ; in Germany, life and 30 years ; in Italy, life and
40 years, with a second term of 40 years, during which other persons

REPORT OF THE BRITISH COMMISSION. 223

than the proprietor may publish a work on payment of a royalty to
him ; in Russia, life and 50 years ; in Spain, life and 50 years ; in
Portugal, life and 50 years ; and in Holland, life and 20 years.
These terms are subject to sundry modifications and conditions which
it is unnecessary for us to enter into, but while we consider it expe-
dient that the existing term of copyright should be altered, we think
that the terms fixed by the nations we have referred to are in some
cases excessive and unnecessary.

40. Upon the whole we suggest the term adopted by Germany,
viz., life and 30 years, as most suitable for Your Majesty's domin-
ions. We are, however, of opinion that, in the event of an inter-
national agreement being concluded, by which a common term is
fixed for copyright in all countries, power should be given to Your
Majesty to adopt, by Order in Council, in lieu of the above term of
life and 30 years, the term fixed by such international arrangement.

41. We further suggest that in the case of posthumous and anony-
mous works and of encyclopaedias, the period should be 30 years
from the date of deposit for the use of the British Museum. In the
case of anonymous works the author should be allowed, during the
period of 30 years, by printing an edition with his name attached, to
secure the full term of life and 30 years.

42. Should these suggestions be adopted, we think that it would
be desirable that copyrights in existence at the time of the passing of
the Act should be extended, subject to a proviso like the one con-
tained in section 4 of the Copyright Act of 1842, guarding against
the alteration of existing contracts between authors and publishers.
In no case should the duration of existing copyrights be abbreviated.

43. One other point relating to the term of copyright remains, to
which we wish to call attention. It has been provided that in the
case of encyclopaedias, reviews, magazines, periodical works, and
works published in a series of books, or parts, for which various per-
sons are employed by the proprietor to write articles, — if the articles
are, written and paid for on the terms that the copyright therein shall
belong to the proprietor of the work, the same rights shall belong to
him as to the author of a book, except in one particular, in which
particular a difference is made between essays, articles, or portions
of reviews, magazines, or other periodical works of a like nature and
articles in encyclopaedias. In the case of the former (but not of
encyclopaedias) a right of separate publication of the articles reverts
to the author after 2S years for the remainder of the period of copy-

224 THE QUESTION OF COPYRIGHT.

right, and during the 28 years the proprietor of the work cannot pub-
lish the articles separately without the consent of the author or his
assigns. Authors can, however, by contract reserve to themselves
during the 28 years a right of separate publication of the articles they
write, in which case the copyright in the separate publication belongs
to them, but without prejudice to the rights of the proprietor of the
magazine or other periodical. We think some modification in this
provision is required as regards the time when the right of separate
publication should revert to the authors of the articles, and that three
years should be substituted for twenty-eight. As we have reason to
believe that proprietors of periodicals have not, as a rule, insisted on
the right given them by the existing law, we think there would be
no objection to making this provision retroactive.

44. It has been pointed out to us that, under the existing law, the
author of an article in a magazine or periodical cannot, until the
right of separate publication reverts to him, take proceedings to pre-
vent piracy of his work ; so that, unless the proprietor of the maga-
zine or periodical be willing to take such proceedings (which may
very likely not be the case when the right of the author is about to
revive), the result would practically be to deprive the author of the
benefit of the right reserved to him. We recommend, therefore, that
during the period before the right of separate publication reverts to
the author, he should be entitled, as well as the proprietor of the
magazine or periodical, to prevent an unauthorized separate publica-
tion.

University Copyright.

45. In connection with the subject of the term of copyright we
have to notice the perpetual copyrights possessed by certain universi-
ties and schools, which form exceptions to the general law by which
copyright is limited to a definite number of years.

46. We find that the Universities of Oxford, Cambridge, Edin-
burgh, Glasgow, St. Andrews, and Aberdeen, each college or house
of learning at the Universities of Oxford and Cambridge, Trinity
College, Dublin, and the colleges of Eton, Westminster, and Win-
chester have forever the sole liberty of printing and reprinting all
such books as have been, or hereafter may be bequeathed or given
to them, or in trust for them by the authors thereof, or by their rep-
resentatives, unless they were given or bequeathed for a limited term.

47. To ascertain the value of this exceptional right to the institu-

REPORT OF THE BRITISH COMMISSION. 225

tions interested, we communicated with the authorities at the Uni-
versities of Oxford and Cambridge, and asked the number of copy-
rights possessed by them in perpetuity under this provision of the
law. We found that the University of Oxford possesses six copy-
rights and that the University of Cambridge has none.

48. This fact shows that the privilege, which is by no means of
recent origin, is of very little real value, and as it is undesirable to
continue any special and unusual kinds of copyright, we are of
opinion that this exceptional privilege should be omitted from the
future law. We do not, however, think it would be right to deprive
the institutions above named of the copyrights they already possess,
without their consent, but should they be retained, we suggest that
the universities and other institutions should be placed upon the same
footing as regards the protection of their copyrights as other copy-
right owners, and that the exceptional penalties and remedies given
by the Act which was passed in the 15th year of the reign of his late
Majesty King George III. should be repealed.

Place of Publication.

49. We now desire to call attention to the place of publication, as
it affects the obtaining of copyright in the United Kingdom.

50. And first we have to notice publication in the colonies, as to
which it appears the present state of the law is anomalous and
unsatisfactory.

51. Copyright in the United Kingdom extends to every part of the
British dominions, but if a book be published first in any part of the
British dominions other than the United Kingdom, the author cannot
obtain copyright, either in the United Kingdom or in any of the
colonies, unless there is some local law in the colony of publication
under which he can obtain it within the limits of that colony.

52. It is obvious that if by Imperial Law copyright is to be
enforced in the colonies, while at the same time first publication in
the United Kingdom is a condition of obtaining it, the colonies are
not treated on fair and equal terms, and that there is just ground of
complaint on the part of colonial authors and publishers.

53. In truth a colonial author is placed even in a worse position
than a foreign author who is the subject of a country with which we
have an international copyright convention. For example, a French
author can publish in France, and subsequently, upon the per-
formance of certain conditions, such as registration, secure himself

226 THE QUESTION OF COPYRIGHT.

against piracy of his work throughout the British Empire, while the
colonial author can neither secure his property in the United King-
dom nor France, unless he first publishes in the United Kingdom.

54. Three ways of remedying this inequality present themselves :
either, (1) the Imperial Act, and the rights under it, may be limited
to the United Kingdom ; or, (2) the same rights throughout Your
Majesty's dominions may be given to British subjects, whether the
work is first published in the United Kingdom or in any colony ; or,
(3) the benefits of Imperial copyright may be freely thrown open to
all authors, without regard to nationality or prior publication else-
where, who publish within the British dominions.

55. Upon consideration we are not disposed to recommend the
first alternative. If the subject had now to be approached for the
first time, it might be thought desirable, looking to the existing
relations between the greater colonies and the mother country, to
confine the right of property in a work to the country where it is
first published, leaving the different colonies to legislate on the sub-
ject, and the copyright proprietor to secure, should he think fit, copy-
right in any other part of Your Majesty's dominions, by complying
with the requirements of the law of such place.

56. It has been suggested further, that if copyright were thus
limited, conventions might be made with the colonies similar to those
made with foreign nations, providing in effect that publication in a
colony should secure the same right to the proprietor of copyright as
publication in the mother country. This would not, however, give
a colonial author copyright elsewhere than in the United Kingdom,
and in such other colonies as might agree to be bound by such con-
ventions ; and it may be questioned whether some of the colonies
would not decline to enter into such conventions. The temptation
to publish cheap copies of English copyright works without payment
to the author would be very great, as it has proved to be in the
United States. Upon this point we need only refer to Mr. Morrill's
Official Report to the Senate of the United States, which will be
found at page 10 of the Parliamentary Paper of July, 1874, upon
Colonial Copyright.

57. But we conceive that the existing anomalies may be removed,
and the interests of the colonists preserved, without restricting the
existing rights of British authors ; and we submit further that the
subject is one of such importance that it may fairly continue to be
treated, in some of its aspects, from an imperial, rather than from a

REPORT OF THE BRITISH COMMISSION. 227

local point of view, and that the colonies should be dealt with as
integral parts of the empire, rather than placed on the footing of
foreign nations. It may be added that foreign nations with whom
we have made conventions might possibly have ground of com-
plaint, if this limitation of the Imperial Act were made without their
assent.

58. We recommend, therefore, generally, that where a work has
been first published in any one of Your Majesty's possessions, the
proprietor of such work shall be entitled to the same copyright, and
to the same benefits, remedies, and privileges in respect of such
work, as he would have been entitled to under the existing Im-
perial Act, if the work had been first published in the United
Kingdom.

59. With regard to publication in foreign states the law now is
that, except under treaty, no copyright can be obtained if a book has
been published in any foreign country before being published in the
United Kingdom, but it is doubtful whether contemporaneous pub-
lication in this and a foreign country would prevent the acquisition
of copyright here.

60. It is a grave question whether it is desirable that the condi-
tion requiring first publication in this country should continue, and
whether the reason advanced for this condition, namely, that it is
advantageous to this country that works should be first published
here, outweighs the hardships that may be inflicted upon British
authors by preventing them from availing themselves of arrange-
ments which they might otherwise make with foreign or colonial
publishers.

61. We have come to the conclusion that a British author, who
publishes a work out of the British dominions, should not be pre-
vented thereby from obtaining copyright within them by a subse-
quent publication therein. Yet we think that such republication
ought to take place within three years of the first publication. And
we may add, that we think the law should be the same with reference
to dramatic pieces and musical compositions first performed out of
Your Majesty's dominions, even though they are not printed and
published ; — in other words, that first performance in a foreign
country should not injure the dramatic right in this country. It has
been decided under the 19th section of the International Copyright
Act, that the writer of a drama loses his exclusive right to the per-
formance of his drama here in England, if it has been first performed

228 THE QUESTION OF COPYRIGHT.

abroad ; that is to say, representation has been held to be a pub-
lication. We see no reason why the rule which may be finally
determined upon with reference to first publication of books should
not apply to first representation of dramatic pieces. The evidence
shows how hardly the present law presses upon British dramatic
authors.

62. As to aliens, although we would give them the same rights
as British subjects if they first publish their works in the British
dominions, it is obvious that the same reason does not exist for giving
them copyright if they do not bring their books first to our market ;
and we therefore recommend that aliens, unless domiciled in Your
Majesty's dominions, should only be entitled to copyright for works
first published in those dominions. It is to be borne in mind that,
even though aliens may be deprived of British copyright by first pub-
lication abroad, they may still obtain it in many cases by means of
treaties.

Persons capable of obtaining Copyright.

63. With regard to the persons who are capable of obtaining im-
perial copyright in Your Majesty's dominions, as distinguished from
international copyright under treaty, we find that, according to the
existing law, the author in order to obtain copyright must be either —

(a.) A natural-born or naturalized subject of Your Majesty, in
which case the place of residence at the time of the publica-
tion of the book is immaterial ; or

(b.) A person who, at the time of the publication of the book in
which copyright is to be obtained, owes local or temporary
allegiance to Your Majesty, by residing at that time in some
part of Your Majesty's dominions.

64. Besides these it is probable, but not certain, that an alien
friend who first publishes a book in the United Kingdom, even
though resident out of Your Majesty's dominions, acquires copy-
right therein. We think this doubt should be set at rest, and that,
subject to our previous recommendation as to place of publication
by aliens not domiciled in Your Majesty's dominions, the benefit
of the copyright laws should extend to all British subjects and aliens
alike.

Immoral, Irreligious , Seditious, and Libelous Works.

65. Our attention has, during the course of our inquiry, been

REPORT OF THE BRITISH COMMISSION. 229

called to the case of books which are of an immoral, irreligious, sedi-
tious, or libelous character. The present law is that no copyright
exists in such works, or in any book which professes to be what
it is not, in such a manner as to be a fraud upon the purchasers
thereof.

66. The difficulty that arises in such cases is, that as the author is
deprived of copyright, he cannot stop republication by other persons ;
and thus, unless there be a prosecution upon public grounds the evil
is allowed to extend, instead of being checked by the only person
who has any private interest in stopping its extension by others. To
grant copyright, however, in such works is out of the question, as
this would be to sanction and protect immorality, irreligion, libels,
and other matters which it is against the policy of the law to encour-
age. The subject, however, really belongs more properly to the
criminal law than to the law relating to copyright : and we therefore
do not make any suggestion with regard to it.

Abridgments of Books.

67. Questions frequently arise, with regard to literary works, as to
what is a fair use of the works of other authors in the compilation of
books. In the majority of cases these are questions that can only
be decided, when they arise, by the proper legal tribunals, and no
principle which we can lay down, or which could be defined by the
Legislature, could govern all cases that occur. There is one form
of use of the works of others, however, to which we wish specially
to draw attention, as being capable of some legislative control in a
direction we think desirable. We refer to abridgments.

68. At present an abridgment mayor may not be an infringement
of copyright, according to the use made of the original work and the
extent to which the latter is merely copied into the abridgment ; but
even though an abridgment may be so framed as to escape being a
piracy, still it is capable of doing great harm to the author of the
original work by interfering with his market ; and it is the more
likely to interfere with that market and injure the sale of the origi-
nal work if, as is frequently the case, it bears in its title the name
of the original author.

69. We think this should be prevented, and, upon the whole
we recommend, that no abridgments of copyright works should be
allowed during the term of copyright, without the consent of the
owner of the copyright.

230 THE QUESTION OF COPYRIGHT.

Dramatic Pieces and Musical Compositions.

70. Dramatic pieces and musical compositions, though in some
respects differing, are yet so similar that we may couple them to-
gether for the purposes of this Report.

71. We have carefully considered the statute law now in force
with reference to music and the drama ; but from the way in which
certain Acts of Parliament have been framed and incorporated by
reference, considerable doubt arises in our minds on various impor-
tant points connected with these subjects.

72. It may be convenient, however, before referring to them more
particularly, to notice a difference that exists between books and
musical and dramatic works. While in books there is only one
copyright, in musical and dramatic works there are two, namely,
the right of printed publication and the right of public performance.

73. These rights are essentially different and distinct, and we find
that many plays and musical pieces are publicly performed without
being published in the form of books, and thus the acting or dra-
matic copyright is in force, while as to literary copyright such plays
and pieces retain the character of unpublished manuscripts. Music
printed and published becomes a book for the purpose of the literary
copyright, and so, we presume, does a play ; but it is a question what
becomes of the performing copyright on the publication of the work
as a book ; and there is a further question, whether the performing
copyright can be gained at all, if the piece is printed and published
as a book before being publicly performed.

74. With regard to the duration of copyright in dramatic pieces,
and musical compositions, we recommend that both the performing
right and the literary right should be the same as for books.

75. We further propose, in order to avoid the disunion between
the literary and the performing rights in musical compositions and
dramatic pieces, that the printed publication of such works should
give dramatic or performing rights, and that public performance
should give literary copyright. For a similar reason it would be de-
sirable that the author of the words of songs, as distinguished from
the music, should have no copyright in representation or publication
with the music, except by special agreement.

Dramatization of Novels.

76. With reference to the drama, our attention has been directed
to a practice, now very common, of taking a novel and turning its

REPORT OF THE BRITISH COMMISSION. 23 1

contents into a play for stage purposes, without the consent of the
author or owner of the copyright. The same thing may be done
with works of other kinds if adapted for the purpose, but inasmuch
as novels are more suitable for this practice than other works, the
practice has acquired the designation of dramatization of novels.
The extent to which novels may be used for this purpose varies.
Stories have been written in a form adapted to stage representation
almost without change ; sometimes certain parts and passages of
novels are put bodily into the play, while the bulk of the play is origi-
nal matter ; and at other times the plot of the novel is taken as the
basis of a play, the dialogue being altogether original.

77. Whatever may be the precise form of the dramatization, the
practice has given rise to much complaint, and considerable loss,
both in money and reputation, is alleged to have been inflicted upon
novelists. The author's pecuniary injury consists in his failing to
obtain the profit he might receive if dramatization could not take
place without his consent. He may be injured in reputation if an
erroneous impression is given of his book.

78. In addition to these complaints it has been pressed upon us
that it is only just that an author should be entitled to the full
amount of profit which he can derive from his own creation ; — that
the product of a man's brain ought to be his own for all purposes ; —
and that it is unjust, when he has expended his invention and labor
in the composition of a story, that another man should be able to
reap part of the harvest.

79. On the other hand, it has been argued that the principle of
copyright does not prevent the free use of the ideas contained in the
original work, though it protects the special form in which those
ideas are embodied ; — that a change in the existing law would lead
to endless litigation ; — and that it would work to the disadvantage
both of the author and the public. Upon these grounds, or some of
them, a bill, introduced by Lord Lyttleton in 1866 and supported by
Lord Stanhope, was defeated.

80. We have fully considered all these points, and have come to
the conclusion that the right of dramatizing a novel or other work
should be reserved to the author. This change would assimilate our
law to that of France and the United States, where the author's
right in this respect is fully protected.

81. Were this recommendation adopted, a further question would
arise, as to the time during which this right should be vested in the

232 THE QUESTION OF COPYRIGHT.

author, and, in the event of his not choosing to dramatize his novel,
whether other persons should be debarred from making use of the
story he has given to the world. We are disposed to think that the
right of dramatization should be co-extensive with the copyright. It
has been suggested, in the interest of the public, that a term, say of
three or five years, or even more, should be allowed to the author
within which he should have the sole right to dramatize his novel,
and that it should be then open to any one to dramatize it. The
benefit, however, to the public in having a story represented on the
stage does not appear to us to be sufficient to outweigh the con-
venience of making the right of dramatizing uniform in its incidents

with other copyright.

Lectures.

82. Lectures are peculiar in their character, and differ from books,
inasmuch as, though they are made public by delivery, they have
not necessarily a visible form capable of being copied. Nevertheless
it has been thought right by the legislature in recent years to afford
them the protection of copyright, and, considering the valuable
character of many lectures, it is our opinion that such protection
should not only be continued, subject to certain changes in the law,
but extended. Although lectures are not always capable of being
copied, because not reduced to writing, many lectures written for
the purpose of delivery are not published, and many are written
that the matter of them may be preserved, or that they may be capa-
ble of delivery in the same form on other occasions. Moreover,
lectures, though not put in writing by the author, may be taken
down in shorthand, and thus published or re-delivered by other per-
sons. The present Act of Parliament, which gives copyright in
lectures, seems only to contemplate one kind of copyright, namely,
that of printed publication, whereas it is obvious that for their entire
protection lectures require copyright of two kinds, the one to protect
them from printed publication by unauthorized persons, the other to
protect them from re-delivery.

83. The present law is that the author of any lecture, or his as-
signee, may reserve to himself the sole right of publishing it, by
giving two days' notice of the intended delivery to two justices of the
peace living within five miles from the place where the lecture is to
be delivered, unless the lecture is delivered in any university, public
school, or college, or on any public foundation, or by any person in
virtue of or according to any gift, endowment, or foundation, in

REPORT OF THE BRITISH COMMISSION. 233

which cases no copyright is given on any condition. If any person
obtains a copy of a protected lecture by taking it down, and publishes
it without the leave of the author, or sells copies, he is to forfeit the
copies, and id. for every sheet found in his custody. This law is
designed merely to prevent unauthorized publication of lectures by
printing, but as has been observed it does not prohibit unauthorized
re-delivery.

84. We think that the author's copyright should extend to prevent
re-delivery of a lecture without leave as well as publication by print-
ing, though this prohibition, as to re-delivery, should not extend to
lectures which have been printed and published. We also recom-
mend that the term of copyright in lectures should be the same as in
books, namely, the life of the author and 30 years after his death.

85. In the course of our inquiry it has been remarked that, in the
case of popular lectures, it is the practice of newspaper proprietors
to send reporters to take notes of the lectures for publication in their
newspapers, and that, unless this practice is protected, it will become
unlawful. It does not seem to us desirable that this practice should
be prevented, but on the other hand the author's copyright should
not in any way be prejudiced by his lectures being reported in a
newspaper. The author should have some sort of control so as to
prevent such publication if he wishes to do so ; and we therefore
suggest that though the author should have the sole right of publica-
tion, he should be presumed to give permission to newspaper pro-
prietors to take notes and report his lecture, unless, before or at the
time when the lecture is delivered, he gives notice that he prohibits
reporting.

86. By the present law, as above stated, a condition is imposed of
giving notice to two justices. Without entering into the origin of
this provision we find that it is little known and probably never or
very seldom acted upon ; so that the statutory copyright is practically
never or seldom acquired. We therefore suggest, that this provision
should be omitted from any future law.

87. We do not suggest any interference with the exception made
in the Act as to lectures delivered in universities and elsewhere,
wherein no statutory copyright can be acquired.

Newspapers.

88. Much doubt appears to exist in consequence of several con-
flicting legal decisions whether there is any copyright in newspapers.

234 THE QUESTION OF COPYRIGHT.

We think it right to draw Your Majesty's attention to the defect,
and to suggest that in any future legislation, it may be remedied by
denning what parts of a newspaper may be considered copyright, by
distinguishing between announcements of facts and communications
of a literary character.

Fine Arts.

89. The next subjects for our consideration were the various
branches of the fine arts, consisting of engravings and works of that
class, paintings, drawings, and photographs, and lastly, sculpture.

90. It might be supposed that the law relating to engravings,
etchings, prints, lithographs, paintings, drawings, and photographs
would be the same so far as those matters are capable of being reg-
ulated by the same law ; but such is not the case. Until the 25th
and 26th years of Your Majesty's reign, there was no Act of Parlia-
ment by which copyright was given for paintings, drawings, and
photographs, while engravings, etchings, and prints were protected
so long ago as the eighth year of the reign of His late Majesty King
George II. Though engravings, etchings, and prints were thus pro-
vided for, a doubt arose in process of time whether the Acts then in
force would apply to lithographs and other recently invented modes
of printing pictures, and it was therefore declared, by an Act passed
in the 15th and 16th years of Your Majesty's reign, that the earlier
Acts were intended to include prints taken by lithography or any
other mechanical process by which prints or impressions of draw-
ings or designs are capable of being multiplied indefinitely. It
might be questioned whether the language of this Act would not
embrace photography, but it seems to have been assumed that it
would not, for in the 25th and 26th years of Your Majesty's reign,
an Act was passed to give copyright in paintings, drawings, and
photographs, and the right thus given was placed on an entirely
different footing and made subject to different conditions from those
to which engravings, etchings, lithographs, and prints are sub-
ject.

91. There is at present great diversity in the law as to the dura-
tion of copyright in works of fine art. For engravings and similar
works the term is 28 years from publication ; for paintings, draw-
ings, and photographs, the life of the artist and seven years ; and
for sculpture 14 years from the first putting forth or publication of
the work, and if the sculptor is living at the end of that time, for a

REPORT OF THE BRITISH COMMISSION. 235

second term of 14 years. We do not think it desirable that these
distinctions should continue.

92. We understand that the reason for making the term in the
case of paintings the life of the artist and seven years, was to avoid
the necessity of proving the date of publication, which is, it is said,
in the case of a painting frequently impossible. There would be
equal difficulty, it is reasonable to suppose, in proving the date of
publication of sculpture, and we have already shown that it exists,
to a minor degree, in the case of all literary works. We think it
desirable as far as possible to get rid of this difficulty. By adopting
as the term the life of the artist and a certain time after death, the
result will be attained.

93. Sculpture, though a branch of the fine arts, is essentially dif-
ferent in many points from paintings, engravings, and works of that
class ; nevertheless we purpose to deal with them concurrently, so
far as the subjects permit.

94. It will have been observed that wherever it is possible to place
on the same footing the various subjects of copyright of which we
have treated in the earlier part of this Report, we have recommended
that the law should be assimilated ; we propose that all the subjects
of fine art shall be dealt with on the same principle so far as they
are capable of that treatment.

95. We therefore propose that the term of copyright for all works
of fine art, other than photographs, shall be the same as for books,
music, and the drama, namely, the life of the artist and 30 years
after his death.

96. We further recommend that it should be open equally to sub-
jects of Your Majesty and aliens to obtain copyright in works of fine
art, but aliens, unless domiciled in Your Majesty's dominions, should
only be entitled to copyright for works first published in those
dominions.

Sculpture.

97. As to sculpture we have had to consider by what acts the
sculptor's copyright ought to be deemed to have been infringed.
Sculpture may be copied in various ways, not only by sculpture and
casting, but by engraving, drawing, and photography ; and since
the rise of photography, the copying of sculpture by that means has
become a considerable business. The question has therefore been
brought before us whether copying by other means than sculpture
or casting ought not to be considered piracy.

236 THE QUESTION OF COPYRIGHT.

98. A material item in the consideration of this question is the
injury likely to be inflicted on the sculptor. The principal witness
on this point, Mr. Woolner, R.A., though he thought that the pho-
tographing of sculpture would probably operate rather as an adver-
tisement in the sculptor's favor than to his detriment, expressed a
wish that the law should give a sculptor protection against copying
by means of drawing or engraving ; and he was of opinion that
incorrect copying by drawing or engraving might be very prejudicial
to the sculptor's reputation. But besides this, there is the question
whether a sculptor ought not to be entitled to any profit to be made
by allowing his works to be photographed or otherwise copied.

99. Upon the whole we are disposed to think that eveiy form of
copy, whether by sculpture, modeling, photography, drawing, en-
graving, or otherwise, should be included in the protection of copy-
right. It might be provided that the copying of a scene in which a
piece of sculpture happened to form an object should not be deemed
an infringement, unless the sculpture should be the principal object,
or unless the chief purpose of the picture should be to exhibit the
sculpture.

100. It was also suggested that copyists of antique works ought to
be protected by copyright so far as their own copies are concerned.
Many persons spend months in copying ancient statues, and the
copies become as valuable to the sculptors as if they were original
works. It may be doubted whether the case does not already fall
within the Sculpture Act, but we recommend that such doubts should
be removed, and, that sculptors who copy from statues in which no
copyright exists should have copyright in their own copies. Such
copyright should not, of course, extend to prevent other persons
making copies of the original work.

Paintings. — Assignment of Copyright on Sale of Pictures.

101. The most difficult question with relation to fine arts which
we have had to consider, is to whom the copyright should belong on
sale of a painting ; whether to the artist or to the purchaser of the
picture.

102. The present law on the subject is as follows : — The author
of every original painting, drawing, and photograph, and his assigns,
have the sole right of copying, engraving, and reproducing it, unless
it be sold or made for a good or valuable consideration, in which
case the artist cannot retain the copyright, unless it be expressly

REPORT OF THE BRITISH COMMISSION. 237

reserved to him by agreement in writing, signed by the vendee, or
by the person for whom the work was executed ; but the copyright,
in the absence of such agreement, belongs to the vendee or such
other person ; but it is also provided that a vendee or assignee can-
not get the copyright unless at the time of the sale an agreement in
writing signed by the artist or person selling is made to that effect.
The result is, that if an artist sells a picture without having the
copyright reserved to him by written agreement he loses it, but it
does not vest in the purchaser unless there is an agreement signed in
his favor. If, therefore, there is no agreement in writing— a very
frequent occurrence — the copyright is altogether lost on a sale, but
if the picture is painted on commission, instead of being sold after
being painted, the copyright in the absence of any agreement vests
in the person for whom the picture is painted.

103. We have taken a good deal of evidence with regard to this
matter. It appears that the provision as to pictures painted on com-
mission was made to prevent the unauthorized copying of portraits.
Some difficulty, however, is said to have arisen in determining whether
an order or a purchase is a commission, so as to bring the picture
within such provision.

104. With regard to the general question whether the copyright in
a picture should in every case remain with the artist unless expressly
sold, or whether it should follow the picture unless expressly retained,
the artists as a body are unanimous in their desire to have the copy-
right reserved to them by law.

105. It is true that if under the present law an artist wishes to
retain the copyright, he can do so by an express stipulation embodied
in an agreement signed by the purchaser. Artists, however, say that
this is practically useless, since the purchaser would look upon a
proposal for such an agreement as intended to deprive him of part
of the value of his purchase. They therefore seldom ask for agree-
ments, preferring that the copyright shall drop. In that case any
person who can gain access to a valuable picture may make and sell
copies of it in defiance of both artist and owner.

106. It is clearly undesirable that copyrights, which are in many
cases of great value, should be in this way left free to piracy. The
law, therefore, should distinctly define to whom, in the absence of
an agreement, the copyright should belong.

107. In dealing with these questions we have had regard not only
to the artist's claims which have been strongly advocated before us,

238 THE QUESTION OF COPYRIGHT.

but also to the interests of the public, and to the consideration
whether any distinction should be made between pictures sold after
being painted and pictures painted on commission, or between por-
traits and other pictures.

108. First, as to portraits as distinguished from other pictures.
Although artists contend that the copyright in pictures should belong
to them notwithstanding a sale, it is admitted by some that an excep-
tion to the general rule might be made in the case of portraits, and
that copyright in them might properly belong to the purchaser or
person giving a commission. The evidence appears to us to prove,
first, that the reasons why the copyright in portraits should belong
to the person ordering the painting apply equally to other pictures ;
and, secondly, that it is by no means easy to say what a portrait is.
Thus it is open to question whether the word would include the portrait
of an animal, a dog, for instance, and if so, whether it would include
a number of dogs, or a pack of hounds ; or a picture of a house or
a room, or any object without life ; and further whether it is to
include pictures of persons taken in character, not so much for the
sake of the portrait of the person, as for the sake of the scene ; and,
lastly, whether it is to include pictures of persons forming large
groups, where the scene is the object of the work, though the pict-
ures of the persons present are portraits.

109. These difficulties lead us on the whole to doubt the expedi-
ency of drawing any distinction between portraits and other pictures.

110. Secondly, as to making a distinction between pictures painted
on commission and others. We are here met with the difficulty of
defining what is a commission ; and looking to the evidence upon
this point we have arrived at the conclusion that no distinction can
practically be made.

in. The only question that remains, therefore, on this branch of
our inquiry is, whether the copyright in a picture when sold, should
still be vested in the artist, independently of the property in the
picture, or whether, unless expressly reserved, it should follow the
ownership of the picture.

112. The evidence shows that persons buying pictures do not in
general think about the copyright, but that if the subject happens to
be mentioned, they are generally under the impression that the copy-
right is included in the purchase, and are astonished if they are told
that it is not. It is said that owing to this fact an artist, however
eminent, when he is selling a picture, shrinks from mentioning the

REPORT OF THE BRITISH COMMISSION. 239

copyright and asking for an agreement to enable him to retain it ;
he usually prefers that the copyright should be absolutely lost to both
parties, as in the absence of any written agreement it would be,
under the first section of the Act which was passed in the 25th and
26th years of Your Majesty's reign (c. 68), than that the purchaser
should think that he is losing a valuable part of his bargain, and
consequently should decline to complete the purchase.

113. The principal reason why artists wish to retain the copyright
is to keep control over the engraver and photographer. To artists
no doubt this control is a matter of considerable pecuniary value,
but they urge that they not only wish to control engraving in
order to get the payment from the engraver, but chiefly to prevent
inferior engraving, which they consider prejudicial to their reputa-
tion. It is admitted that if a picture is sold, the artist would have
no power to get it engraved when it is in the possession of the pur-
chaser, except by his consent, and artists are willing that this should
continue to be the case ; but if this power of preventing engraving
is so valuable, it is not easy to see why they should hesitate to
explain the law to the purchaser and offer to let him have the copy-
right if he will preserve the picture from inferior engraving, rather
than let the copyright be lost both to artist and purchaser.

114. This difficulty does not, we may observe, arise in sales to
publishers, who, as a rule, purchase for the purpose of engraving,
and therefore buy the copyright.

115. Upon the whole, then, the majority of us have arrived at the
conclusion, that, in the absence of a written agreement to the con-
trary, the copyright in a picture should belong to the purchaser, or
the person for whom it is painted, and follow the ownership of the
picture. We may observe that this conclusion, though differing
from the Bill of 1862 as originally drawn, and from a draft Bill of
1864, is in accordance with the provisions of the Fine Arts Bill of
1869, which we learn from Mr. Blaine's report was "prepared by
direction of the Council of the Society of Arts, Manufactures,
and Commerce, in consequence of a memorial having been pre-
sented to the Council by a considerable number of the most emi-
nent artists and publishers resident in London." It is further sub-
stantially the same as the first section of the existing Act of 1862,
except as to the concluding provision in that section, which enacts
that the vendee cannot have the copyright unless an agreement to
that effect is made in writing. This proviso was apparently added

240 THE QUESTION OF COPYRIGHT.

to the Bill without sufficient consideration, during its progress
through Parliament.

116. Upon this part of the case we may here refer to a question
that has been brought under our notice, namely, whether an artist
who has sold a picture should be allowed, without the consent of the
owner, to make replicas of it, or whether, as has been suggested, a
distinction should be made between replicas made by the artist and
copies made by others than the artist. We are not, however,
inclined to recognize any distinction ; nor indeed, so far at all events
as replicas in the same material are concerned, does it appear to be
supported by artists.

117. Though in the preceding paragraphs we have spoken only of
paintings, the law is the same as to drawings and photographs ; and
we think that, whatever changes may be made in the law as to paint-
ings, the same should be made with regard to drawings.

118. Photographs, however, present some difficulty. At the pres-
ent time they are coupled by Act of Parliament with paintings and
drawings, and are subject to the same law, but, as we have before
pointed out, we believe this circumstance arose merely from the fact
that before the year 1862, when the Act was passed, there was no
copyright protection afforded by the law for either of these subjects,
and it was then thought right that photographs should be protected
as well as other works of art. On consideration, however, it will be
seen that photographs are essentially different from paintings and
drawings, inasmuch as they more nearly resemble engravings and
works of a mechanical nature, by which copies of pictures are multi-
plied indefinitely.

119. We propose that the term of copyright in photographs should
be 30 years from the date of publication, except when originally pub-
lished as part of a book. In the latter case it should be for the term
of copyright in the book.

120. But the point upon which we feel difficulty is, whether the
copyright should be assimilated to that in paintings and pass to a
purchaser, or whether it should remain with the photographer.
When photographs are taken with a view to copies being sold in
large numbers, it is practically impossible that the copyright in the
negative should pass to each purchaser of a copy, and it must remain
with the photographer, or cease to exist. On the other hand the
same reasons exist for vesting the copyright of portraits in the pur-
chaser or person for whom they are taken, as in the case of a paint-

REPORT OF THE BRITISH COMMISSION. 24 1

ing. Indeed, considering the facility of multiplying copies, and the
tendency among photographers to exhibit the portraits of distin-
guished persons in shop windows, it may be thought that there is
even greater reason for giving the persons whose portraits are taken
the control over the multiplication of copies than there is in the case
of a painting. It therefore becomes a question whether it is not
necessary to make that distinction between photographs that are por-
traits and those that are not, and between photographs taken on
commission and those taken otherwise, which we have deprecated in
the case of paintings.

121. We suggest that the copyright in a photograph should belong
to the proprietor of the negative, but, in the case of photographs
taken on commission, we recommend that no copies be sold or ex-
hibited without the sanction of the person who ordered them.

122. The same questions arise with respect to engravings, litho-
graphs, prints, and similar works. These arts, like photography,
may be employed for the purpose of issuing a large number of copies
of a picture, or merely for the purpose of executing a commission
and printing a few copies, of a portrait for instance, for private dis-
tribution by the person giving a commission among his friends. We
think, therefore, that so far as regards the transfer and vesting of the
copyright these arts should be placed upon the same basis as photog-
raphy.

123. Before leaving the subject of the fine arts, we wish to notice
one other matter as to which artists say the law is disadvantageous
to them. Before an artist paints a picture, he frequently finds it
necessary to make a number of sketches or studies, which, grouped
together, make up the picture in its finished state. These works
may be studies expressly made for the picture about to be painted,
or they may be sketches which have been made at various times, and
kept as materials for future pictures. If, after a picture is so com-
posed, the copyright is sold, the artists are afraid that they are pre-
vented from again using or selling the same studies and sketches, as
they have been advised that such user or sale would be an infringe-
ment of the copyright they have sold.

124. It may be doubted whether this fear is well founded, but as
the use of such studies and sketches as we have described could not,
in our opinion, result in any real injury to the copyright owner, who
has copies of them in his picture in a more or less altered shape, and
combined with other independent work, we think the doubt should

242 THE QUESTION OF COPYRIGHT.

be removed, and that the author of any work of fine art, even though
he may have parted with the copyright therein, should be allowed to
sell or use again his bond fide sketches and studies for such works
and compositions, provided that he does not repeat or colorably
imitate the design of the original work. We may observe that a pro-
vision to this effect was inserted in the Copyright Bill which was
introduced by Lord Westbury in 1869.

Architecture.

125. In the course of our inquiry we received an application from
the Royal Institute of British Architects, that a representative of the
Institute might bring before us a grievance under which architects
considered themselves to suffer. Mr. Charles Barry, the president,
attended, and after reading to us a copy of a petition on the subject,
which had been presented to the House of Lords in the year 1869,
and some other papers which will be found in the evidence, con-
tended that architects were subjected to great injustice and injury
through their designs not having the protection of copyright, so as
to prevent them being used by other persons than the author for
building purposes ; and some instances of hardship were given.

126. He suggested that the right to reproduce a building should
be reserved to the architect for 20 years, and this whether reproduc-
tion were desired on the same scale or a different one, or in whole or
in part, and whether by the person who gave the commission or any
other ; and further that copyright in architectural designs should be
reserved to the author from the date of erection of a building or the
sale of the design.

127. We are satisfied, as regards the former suggestion, that it
would be impracticable to reserve this right to reproduce a building.
With regard to the latter suggestion, we may observe that though
architectural designs have no protection as designs, they are, in our
opinion, protected as drawings by the Fine Arts Act, passed in the
25th and 26th years of Your Majesty's reign, so that they may not
be copied on paper ; and we think that such protection should be
preserved.

Registration of Copyright and Deposit of Copies.

128. In the early part of our Report we referred to the existing
law respecting registration. It affords one of the most striking

REPORT OF THE BRITISH COMMISSION. 243

instances of those anomalies and distinctions which have grown
up in the law of copyright, because the various subjects of the copy-
right law have been dealt with by the legislature at different times,
and because there has been no attempt made to bring them into har-
mony.

129. We would first draw attention to the deposit, or presentation
of copies of books to various public libraries.

130. By the present law a copy of the first edition, and of every
subsequent edition containing additions and alterations, of every book
published in any part of Your Majesty's dominions, must be delivered
at the British Museum gratuitously, within a certain time after pub-
lication ; and in default of such delivery the publisher is subject to
penalties. There are four other libraries which have a right, on
demand, to receive copies of every edition of every book, but to these
special cases we shall hereafter have occasion to refer. No such
deposit or presentation is required in the case of musical composi-
tions or dramatic pieces publicly performed, unless printed and pub-
lished, or in the case of lectures publicly delivered unless printed and
published, or in the case of engravings and similar works, or of paint-
ings, drawings, or photographs.

131. In every c?sw for which registration is provided, except that
of sculpture, it is effected at the Hall of the Stationers' Company,
by an officer of the company called the Registrar of Copyright.
Sculpture is not registered at Stationers' Hall, but, under the Copy-
right in Designs Acts, was, until recently, registered, if at all, by the
Registrar of Designs. Since the abolition of the office for registra-
tion of designs as a separate paid office, sculpture has been registered
under arrangements made by the Commissioners of Patents. We
ought here to mention that under the International Copyright Act,
to which we shall hereafter more particularly allude, copyright in
foreign works is in all cases, including sculpture, registered at Sta-
tioners' Hall, and that by the same Act registration is made compul-
sory for works of those classes which, if British, are not required to
be registered, and for which no domestic provision for registration
exists.

132. By the present law, registration of books and works included
by Act of Parliament in that term, is optional, but no action can be
maintained for infringement of copyright until they have been regis-
tered. After registration, however, actions will lie for antecedent
infringement. The principle of the law, therefore, is, that copyright

244 THE QUESTION OF COPYRIGHT.

attaches upon production and publication, and that registration is
only a legal preliminary to the enforcement of the right against a
wrongdoer. The law, as will hereafter be seen, differs in regard to
other works ; but at present we confine our remarks to books.

133- We do not consider this state of the law satisfactory. We
find that, as a matter of fact, few books are registered until the
copyright has been infringed, and though the words " Entered at
Stationers' Hall " are frequently to be seen on the title-pages of
books, or on the outer sheets of music, entries are not generally
made.

134. Several objections have been urged to this state of things.
One is, that if it be the object of registration to define the extent and
the duration of a right, as well as to ascertain to whom the right
belongs, a law which leaves it open to all concerned to avoid that
very definiteness which the law seeks to impose, is clearly unsatis-
factory. Under the present system it is impossible to ascertain when
the term of copyright in a particular book commenced, and therefore
to know when it ends. And lastly, it is rendered uncertain whether
an author intends to insist upon his copyright at all.

135. The remedies which have been proposed to us are either the
total abolition of registration, or that it should be made compulsory,
systematic, and efficient.

136. Those persons who suggest the abolition of registration have
argued that it is of no practical utility ; — that it cannot, as in the case
of shares, ships, or land, be conclusive evidence of title ; — that it
cannot prove that the book registered was written by the person who
registers it, or that it is not a piracy ; — and that the owner can assert
and prove his right quite as well by extrinsic evidence as by means
of a register. Those, on the other hand, who advocate registration,
say that it is a useful system, because copyright is a species of in-
corporeal property, of which some visible evidence of existence is
desirable ; — that it may on occasions be a matter of public utility to
know to whom certain books belong, and that by means of regis-
tration the public are enabled to ascertain the fact, and whether
copyright in a book does exist. They argue further that another
advantage which can and ought to be derived from registration is
that the register might be made conclusive evidence of transfer or
devolution of title ; — and that it would afford to the country a com-
plete list of all literary works brought out in this country. It is
also said to be very probable that in the absence of registration

REPORT OF THE BRITISH COMMISSION. 245

English authors might find it difficult to enforce their rights in other
countries. It is admitted to be a convenience to an author to be
able, under an international copyright convention, to produce as
evidence a copy of the register, instead of being obliged to prove by
witnesses his authorship and right.

137. We are satisfied that registration under the present system
is practically useless, if not deceptive. Great annoyance is caused
to persons who are obliged to resort to the register, whether for the
purpose of registering works or of searching for entries, by the mode
in which the register is kept. In stating this we do not desire to
express any censure upon the gentleman who holds the office of
registrar. Our censure is intended to apply to the system in force,
and the law which orders, or at least sanctions it. Moreover, in our
opinion the fees are unnecessarily high.

138. We have been satisfied by the arguments in favor of regis-
tration that it is advisable to insist upon it, and that it should be
made more effective and complete. To this end it should be made
compulsory.

139. Before we refer to the several modes by which it has been
suggested to us that registration may be made compulsory, it will
be convenient to call attention to the system of registration now in
force.

140. The existing regulations as to registration at Stationers' Hall
are contained in the Copyright Act which was passed in the 5th and
6th years of Your Majesty's reign. By that Act a book of registry,
wherein may be registered the proprietorship in the copyright of
books and assignments thereof, and in dramatic and musical pieces,
whether in manuscript or otherwise, and licenses affecting such copy-
right, is to be kept at the Hall of the Stationers' Company by an
officer appointed by the company for that purpose. The register
is to be open at all convenient times for inspection on payment of
is. for every entry searched for or inspected, and certified copies
of entries maybe obtained on payment of 5^., such copies being
made primd facie evidence of certain specified matters in all courts.
To make a false entry, or to tender in evidence a fictitious copy, is
a misdemeanor. Any proprietor of copyright in a book may enter
in the register, in a specified form the title of the book, the time of
first publication, the names and places of abode of the publisher and
proprietor of the copyright, or of any portion of the copyright : a
fee of 5.f. is payable on registering a book, and on payment of a

246 THE QUESTION OF COPYRIGHT.

similar sum any copyright may be assigned by the proprietor by
making an entry of the assignment in the register. In case of error
in the register, power is vested in Your Majesty's High Court of
Justice to order a correction to be made. With regard to the regis-
trar, he, by the terms of the Act, is appointed by the Stationers'
Company. There is no power of dismissal given, but possibly the
Company have a power of dismissal for reasonable cause. It seems
doubtful whether the appointment is for life, or whether it is annual,
but renewed as a matter of course ; but for all practical purposes
the appointment may be regarded as a life appointment. The
remuneration of the registrar is by means of the fees payable for
entries, certificates, assignments, and searches for entries of copy-
rights in the register. These fees wholly belong to the registrar,
and the Stationers' Company does not participate in them.

141. In the course of our inquiry we received many complaints of
a serious character from a number of witnesses against the present
system of registration, and the mode in which the register is managed
and the business conducted at Stationers' Hall. Great dissatisfaction
has also been expressed at the amount of the fees, but these it will
be remembered are fixed by the Act of Parliament. With regard to
the complaints relating to the conduct of the registration, we feel
bound to say that the registrar (whom we invited to come before us
a second time, if he desired to say anything in answer to the charges
made by the other witnesses) was able to give satisfactory answers
to many of the charges. Among others, complaints were made of
the ignorance displayed in the office by the officials there, and their
inability to answer questions put to them relating to copyright and
registration. These questions, however, in many cases appeared to
be of a legal and intricate character, and of such a kind that the
registrar and clerks could scarcely be expected to answer them, even
if it had been their duty to do so, upon which point we entertain
considerable doubt.

142. Complaints were also made of the inconvenience of the
Registration Office and the insufficiency of the space. After a care-
ful examination into these points, and a personal inspection of the
office by some of Your Majesty's Commissioners, we are satisfied
that the building is very inadequate for the purpose of the business
conducted there, and that it would become more so upon the intro-
duction of compulsory registration. Nor can there be any doubt
that the register itself is capable of considerable improvement.

REPORT OF THE BRITISH COMMISSION. 247

143. With regard to the insufficiency of the office accommodation,
we were informed by the clerk to the Stationers' Company, that
should the legislature continue to intrust to them the duty of regis-
tration they would be willing in three or four years' time, when some
of their property adjacent to the present office will be pulled down,
to erect at their own expense suitable offices on an increased scale
and with proper accommodation.

144. It is only fair to the Stationers' Company to point out that
they have no power under the Act to make any regulations respect-
ing registration. If, therefore, registration be continued at Station-
ers' Hall, it would appear to be right that some power of control
should be vested in the Company by Parliament, and we believe that
they are ready to accept that power.

145. In order to provide an improved system of registration in
substitution for that now in use, it appears to us that the two acts of
registration and deposit of the copy of a book at or for the British
Museum should be combined ; or, in other words, that, so far as the
author is concerned, registration should be complete on the deposit
of the copy and on obtaining an official receipt. One advantage of
this would be a diminution of labor and expense, and the British
Museum would probably receive all copyright books without the
labor of hunting for them in booksellers' catalogues and advertise-
ments, as we are informed the officials are obliged to do under the
present system. Another advantage would be that the fees to be
paid for registration might be materially diminished.

146. The registration should be effected by the registrar appointed
for that purpose, whose duty it should be to receive the copy of the
book, to register the official receipt, and to give a copy thereof, cer-
tified by him, to the person depositing the book. This certified copy
should be a substitute for the certificate at present obtained, and it
should be prima facie evidence in courts of law of the publication
and due registration of the work, and of the title to the copyright of
the person named therein.

147. A fee of is. would in our opinion be ample, if registration
be made compulsory, to render the office of registration self-support-
ing. This is shown by the statistics as to the number of books and
other publications received at the British Museum, which will be
found in the Appendix to the Evidence of Mr. J. Winter Jones. There
might also be a fee of is. for searches. This, besides providing a
large revenue, would enable authors to obtain for is. both registra-

248 THE QUESTION OF COPYRIGHT.

tion and a certificate of registration of copyright, for each of which
5-f. is now charged.

148. We regard it as a mistake that the appointment of an officer for
so important a duty as that of registering rights affecting a vast num-
ber of persons, and the evidence of which ought to be under the con-
trol of the Government, should be vested in a private society. The
registers ought to be placed in such keeping that they may at all times
be treated as part of the public records, and the registrar ought to be
a person amenable to a Government department. The necessity for
this would be increased by the acceptance of our suggestion that
registration should be made compulsory. In any case the registry
and the registrar should be under Government direction and respon-
sible to Government.

149. Considering that a copy of each book has to be deposited at
the British Museum, — that at present the authorities of the Museum
have to give receipts for the works deposited and to keep certain
registers, — and that it is a part of our plan that the deposit of the
book and registration of the copyright should be combined, — it
appeared to us that the most appropriate place for the Registry Office
would be the British Museum, and that the officers of the registry,
whilst under the general control of the trustees of the Museum,
should be answerable to Government for the proper discharge of
their duties. We, therefore, put ourselves into communication with
the trustees, with a view of ascertaining their opinion on the point,
but they stated that they deemed it undesirable for the British Mu-
seum to undertake the duty, on the ground that registration of copy-
right is an executive function, and did not come within the sphere
of their duties as trustees of the British Museum. A copy of the
correspondence will be found in the Appendix and we cannot but
express our regret that the trustees declined to accede to our request
that one of their body should appear before us. It is probable that
a full explanation of our views and a personal discussion might have
removed the difficulties which they felt upon this point.

150. If registration of copyright should not be established at the
British Museum, it might be either retained at Stationer's Hall, or
removed to some Government office established for the purpose. It
is proper to state that the Stationers' Company seem desirous of
retaining the office, because their Hall has been the place for regis-
tration ever since registration was instituted ; and further that it has
been recognized as the place of registration in several international

REPORT OF THE BRITISH COMMISSION. 249

conventions. In our opinion, however, the reasons in favor of trans-
ferring registration to a Government office preponderate. In either
case arrangements will have to be made for transferring to the Brit-
ish Museum the works which are deposited and registered else-
where.

151. It only remains for us to notice the means by which registra-
tion may be most easily rendered compulsory. Three ways have
been suggested to us in which this may be done : — 1. By making
registration on the date of publication a condition of an effective
copyright. 2. By inflicting a pecuniary penalty. 3. By giving the
owner a direct interest in registering his copyright. With reference
to the second suggestion, there is at present a pecuniary penalty for
failure to present books to the library of the British Museum, and it
is urged that it would be found sufficient for the purpose of compel-
ling registration ; but to this it is replied that little effect can be
expected in such a case as registration of copyright from a mere
penalty ; and also that a penalty would have to be enforced through
the medium of some Government office ; and that, independently of
the difficulty there would be in finding out books that had not been
registered, no Government office would willingly execute the task of
suing for penalties. With regard to the presentation of books to
the British Museum, the Museum has an interest in procuring the
books distinct from the matter of the penalty.

152. With the third suggestion we are inclined to agree ; and
although we are not disposed to advise the abolition of a penalty for
not delivering for the use of the British Museum a copy of every
book which has not been delivered and registered at Stationers'
Hall, or some Government place of registration, we think that com-
pulsory registration would be sufficiently secured by the third course
that has been suggested, namely, — that a copyright owner should
not be entitled to take or maintain any proceedings, or to recover
any penalty in respect of his copyright until he has registered, and
that he should in no case be able to proceed after registration for pre-
ceding acts of piracy. This is the present law in the case of paint-
ings, drawings, and photographs, and we see no reason why the
same law should not be applied to copyright in every other work that
has to be registered.

153. If this plan should be adopted, it becomes a question what
should happen after registration with regard to copies made before
registration. Were the copyright owner entitled upon registration

250 THE QUESTION OE COPYRIGHT.

to suppress all such copies, the compulsory provisions of the law
would to a certain extent be neutralized, because it would be unnec-
essary for copyright owners to register until their works had been
copied. It has been urged, on the other hand, that if an unscrupu-
lous person should, after the expiration of the time allowed for regis-
tration, and before registration, publish a large number of copies,
the copyright owner would practically lose all the benefit of his
copyright if these copies were allowed to be sold and circulated after
registration. We think, however, that in practice this would not
occur. As a rule, registration would be effected immediately on pub-
lication, and before the work could be copied.

154. We therefore recommend that proprietors of copyright should
not be entitled to maintain any proceedings in respect of anything
made or done before registration, nor in respect of any dealings sub-
sequent to registration with things so made or done before registra-
tion. But as this provision might in some cases operate harshly, we
think it should not apply if registration is effected within a limited
time, say one month, after publication.

155. In making these remarks on the subject of registration, we
have referred only to books and works of a similar character, but we
intend them equally to apply, with one exception, to dramatic pieces
and musical compositions which are publicly performed but are not
printed and published. We have suggested that the acts of registra-
tion and deposit of a copy of the book should be combined, and
it is manifest that there could not conveniently be any deposit of a
copy of a work not printed ; we propose, therefore, that in these
cases it should be sufficient that the title of every drama or musi-
cal composition, with the name of the author or composer, and
the date and place of its first public performance, should be regis-
tered.

156. For the sake of uniformity we are of opinion that it is
desirable that the law of registration should, as far as possible,
be the same for works of fine art as for books, music, and the
drama.

157. It has, however, been strongly urged upon us that compulsory
registration in the case of paintings and drawings is practically
impossible ; and it would seem that the same arguments that are
used against compulsory registration in the case of paintings and
drawings apply equally to sculpture. There is no doubt a great dif-
ficulty in the way of compulsory registration of paintings and draw-

REPORT OF THE BRITISH COMMISSION. 25 1

ings. This arises from the fact that the class of pictures to be regis
tered cannot be limited, and that if copyright in an important work
is only to be secured by registration, copyright in the smallest sketch
or study could only be preserved by the same means. Some diffi-
culty also arises from the fact that paintings, drawings, and sketches
are so frequently subjected to alteration that it would be almost
impossible to say when a work is finished so as to be capable of
registration as a completed work.

158. On these grounds, therefore, we recommend that registration
of paintings and drawings should not be insisted on so long as the
property in the picture and the copyright are vested in the same
person, but that if the copyright be separated by agreement from the
property in the picture, there should be compulsory registration, and
that the register should show, —

(a.) The date of the agreement.

(6.) The names of the parties thereto.

(V.) The names and places of abode of the artist and of the person
in whom the copyright is vested.

(d.) A short description of the nature and subject of the work,
and, if the person registering so desires, a sketch outline or
photograph of the work in addition thereto.

159. With regard to such works as engravings, prints, and photo-
graphs, there would not be the same difficulty, and we think that
they should be subject to compulsory registration in the same way as
books.

Forfeiture of Copies.

160. Before proceeding farther we may notice a provision of the
law which we consider of great value as a protection for owners of
copyright, and which we consider it desirable to retain. By the Act
which was passed in the 5th and 6th years of Your Majesty's reign
it is provided that all copies of any book in which there is copyright,
unlawfully printed or imported without the consent in writing under
his hand of the registered proprietor of the copyright, are to be
deemed to be the property of the registered proprietor of such copy-
right, and he may sue for and recover the same, with damages for
the detention thereof, from any person who detains them after a
demand thereof in writing. We recommend that this provision,
mutatis mutandis, should be extended to works of fine art. We

252 THE QUESTION OF COPYRIGHT.

think it would, however, be an improvement to provide that these
copies and damages might be summarily recovered by application to
a magistrate.

Public Libraries.

161. The subject which we have next to notice is the obligation
that now exists to present gratuitously copies of every book pub-
lished to certain public libraries. This obligation dates from the
reign of his Majesty King Charles II., and since that date it has
varied from time to time as regards the number of copies required to
be presented and the libraries entitled to them, the number of the
latter having at one time been as high as eleven. The Act by which
the present obligation was imposed is that which was passed in the
5th and 6th years of Your Majesty's reign. By that Act one copy
of every book published, and of every second or subsequent edition,
if any alterations or additions are contained therein, has to be de-
livered gratuitously by the publisher at the British Museum, and if
a demand be made in writing one copy has also to be delivered
gratuitously for the Bodleian Library at Oxford, the public library
at Cambridge, the library of the Faculty of Advocates at Edinburgh,
and the library of Trinity College, Dublin. Thus authors and pub-
lishers have now generally to provide five copies of each work, as
well as of second and subsequent editions, at their own cost for
public use. A slight difference is made between the cases of the
copies given to the British Museum and of those given to the other
libraries. In the former the copies have to be of the best kind pub-
lished, and in the latter the copies are to be upon the paper of which
the largest number of copies of the book or edition is printed for
sale ; and in the former the delivery is obligatory in every instance,
while in the latter it is only required if a demand be made. As a
matter of fact, however, copies of nearly every work of any impor-
tance are presented to all five libraries.

162. Many of the witnesses who have given evidence before us
have complained of this obligation as a heavy and unjust tax. The
weight of it, however, is hardly felt in the case of low-priced books,
or books of large circulation, though the gratuitous presentation of a
number of books of even small value involves a double loss to authors
and publishers, assuming that the libraries would each buy a copy,
were one not to be obtained without payment. The grievance is of
course most felt in the case of expensive works. Publishers com-
plain of the injustice of taxing them or the authors for the mainte-

REPORT OF THE BRITISH COMMISSION. 253

nance of public libraries, and ask why the public, or the bodies to
be benefited, should not pay for the books they require.

163. When this complaint was made to us we communicated with
the authorities at the libraries other than the British Museum, in
order to ascertain the number of books obtained by them under the
Act, and the value they attached to their privilege. We obtained
replies from which it appears that a large number of the books pub-
lished are sent to these libraries, and that they are generally sent
without any demand being made for their delivery ; also that the
authorities regard the privilege as one of considerable value, which
they are not willing to part with. We have placed a copy of this
correspondence in the Appendix to the Evidence.

164. Having to decide between the authors and publishers on the
one hand, and the libraries on the other, we on the whole consider
that the complaint of the authors and publishers is well founded, and
we have come to the conclusion that so much of the existing law
relative to gratuitous presentation of books to libraries, as requires
copies of books to be given to libraries other than that of the British
Museum, should be repealed. In making this recommendation we
have taken into consideration the facts that the bodies to whom the
libraries belong are possessed of considerable means and are well
able to purchase any books which they may require ; and also that
the repeal of the clause giving the privilege, will not deprive the
libraries of any property already acquired, but merely of a right to
obtain property hereinafter to be created.

165. It will have been seen that we do not propose to interfere
with the obligation to deliver at the library of the British Museum a
copy of every book published, as it is a part of our scheme that
registration should be effected and copyright secured by the deposit
of a copy of the work for the public use. To this we think no rea-
sonable objection can be made.

166. We will only add that the importance of securing a national
collection of every literary work has been recognized in most of the
countries where there are copyright laws. And with a view to
make the collection in this country more perfect, we are disposed to
think that it would be desirable to require the deposit at the British
Museum of a copy of every newspaper published in the United
Kingdom. As a matter of fact, such newspapers are, we believe,
now deposited there, but a doubt has been raised whether that de-
posit could be enforced under the existing law.

254 THE QUESTION OF COPYRIGHT.

Music and the Drama. — Penalties.

167. We have next to refer to a provision of the law which has of
late occasioned some dissatisfaction, and which, in our opinion,
needs revision.

168. By an Act of Parliament which was passed in the third year
of the reign of His late Majesty King William IV. (c. 15 , it was
enacted, with reference to dramatic copyright, that if any person
should, during the continuance of the sole liberty of representation
and contrary to the right of the author, or his assignee, represent or
cause to be represented, without the consent in writing of the pro-
prietor of the copyright first had and obtained, at any place of dra-
matic entertainment within the British dominions, any dramatic
piece, the offender should be liable, for each and every representation,
to the payment of an amount not less than 40^., or to the full
amount of the benefit or advantage arising from the representation,
or the injury or loss sustained by the proprietor of the copyright,
whichever should be the greater damages ; such sum to be recovered
together with double costs of suit by the proprietor. In the 20th
section of the Act, which was passed in the 5th and 6th years of
Your Majesty's reign (c. 45), it was recited that it was expedient to
extend to musical compositions the benefits of the earlier Act, and
it was enacted that the provisions of the earlier Act should apply to
musical compositions.

169. This provision for the 40J. penalty has lately^ been much
abused. Copyrights in favorite songs from operas and in other
works have been bought, and powers of attorney have been obtained
to act apparently for the owners of the copyright in such works, and
to claim immediate payment of 2/. for the performance of each song.
These songs are frequently selected by ladies and others for singing
at penny readings and village or charitable entertainments, and they
sing them not for their own gain, but for benevolent objects. In
such cases there is manifestly no intention to infringe the rights of
any person ; the performers are unconscious that they are infringing
such rights ; and no injury whatever can be inflicted on the proprie-
tors of the copyrights. In many cases of this kind, and under a
threat of legal proceedings in default of payment, the penalty has
been demanded, and we have reason to believe that the money so
demanded has been generally paid. Many instances of this pro-
ceeding have been brought to our notice from various parts of the
country, and some will be found in the evidence.

REPORT OF THE BRITISH COMMISSION. 255

170. We have inquired whether the abolition of the right to take
proceedings for the performance of these single songs would inflict
injury on composers. The opinion seemed to be that though public
performance is generally advantageous to composers, since it oper-
ates as an advertisement of their works, it is necessary that copyright
owners should retain sufficient control to enable them to save their
music from inferior or unsuitable performance, which might give the
public an unfavorable opinion of their compositions.

171. The amendment in the law which we propose as most likely
to preserve control for the composers, and at the same time to check
the existing abuse, is that every musical composition should bear on
its title-page a note stating whether the right of public performance
is reserved, and the name and address of the person to whom appli-
cation for permission to perform is to be made. The owner of such
composition should only be entitled to recover damages for public
performance when such a statement has been made ; and instead of
the minimum penalty of not less than 40J. at present recoverable for
any infringement of musical copyright by representation, the court
should have power to award compensation according to the damage
sustained.

172. This abuse of the powers given by the Act does not seem to
have arisen in the case of dramatic copyright, nor does it seem likely
to arise so long as the present law of licensing places of dramatic
performance exists. We do not therefore suggest any alteration in
the law so far as it applies to that copyright.

Fine A rts. — Infringem en t.

173. Two matters relating to infringement of copyright in works of
fine art, but particularly of paintings, have been brought to our notice,
in which, it is alleged, the law affords an inadequate remedy.

174. First, by the 6th section of the Act which was passed in the
25th and 26th years of Your Majesty's reign (c. 68) it was enacted
that if any person should infringe copyright in any painting, drawing,
or photograph, he should be liable to a penalty of 10/. , and all the
piratical copies should be forfeited to the proprietor of the copy-
right. Artists and engravers, who are frequently proprietors of
copyright in paintings and drawings, consider the provision enabling
them to seize piratical copies to be of great value, but they say that
it is rendered inefficient by the fact that no power is given to enter a
house and search for copies. An instance was given to us where, a

256 THE QUESTION OF COPYRIGHT.

conviction for selling piratical copies having been obtained, the mag-
istrate had made an order that the copies should be delivered up,
but it was found that the order could not be enforced.

175. The only remedy suggested to meet the evil, is that proposed
in the Bill introduced into Parliament in the year 1869, but with-
drawn before it became law, and which runs as follows : —

" Upon proof on the oath of one credible person before any justice
of the peace, court, sheriff, or other person having jurisdiction in
any proceeding under this Act that there is reasonable cause to sus-
pect that any person has in his possession, or in any house, shop, or
other place for sale, hire, distribution or public exhibition any copy,
repetition or imitation of any work of fine art in which or in the de-
sign whereof there shall be subsisting and registered copyright under
the Act, and that such copy, repetition, or imitation has been made
without the consent in writing of the registered proprietor of such
copyright, it shall be lawful for such justice, court, sheriff or other
person as aforesaid before whom any such proceeding is taken, and
he or they is and are hereby required to grant his or their warrant to
search in the daytime such house, shop, or other place, and if any
such copy, repetition, or imitation, or any work which may be reason-
ably suspected to be such shall be found therein, to cause the same
to be brought before him or them, or before some other justice of
the peace, court, sheriff, or person as aforesaid, and upon proof that
any or every such copy, repetition, or imitation was unlawfully made,
the same shall thereupon be forfeited and delivered up to the registered
proprietor for the time being of the copyright as his property."
Though we should be glad to see some remedy adopted, we entertain
doubts whether that proposed is not of a more stringent character
than the circumstances justify.

176. The other matter relative to copyright in the fine arts, with
regard to which it is said the law is defective, arises out of the now
very common practice of hawking about the country piratical copies,
and particularly piratical photographs of copyright paintings and
engravings. This is spoken of as a serious injury to the copyright
proprietors, and a practice which the existing law is powerless to
stop.

177. At present all penalties and all copies forfeited can be re-
covered in England and Ireland only by action or by summary pro-
ceedings before justices, that is, by summoning the offending person
before the justices, and in Scotland by action before the Court of

REPORT OF THE BRITISH COMMISSION. 257

Session, or by summary action before the sheriff. The complaint
made to us is that there is no power to seize piratical copies where
they are seen and when they might be taken. The power to pro-
ceed by summons is, it is said, generally ineffectual, because persons
selling these copies go round from house to house and refuse to give
either a name or address, and are altogether lost sight of before a
summons can be procured.

178. A remedy by seizure was proposed in the Bill of 1S69, and we
think that the evil can best be met by the introduction in any future
Act of a clause similar to the 15th of that Bill. The 15th clause was
as follows : —

" If any person elsewhere than at his own house, shop, or place of
business, shall hawk, carry about, offer, utter, distribute, or sell, or
keep for sale, hire, or distribution, any unlawful copy, repetition, or
colorable imitation of any work of fine art, in which, or in the de-
sign whereof, there shall be subsisting and registered copyright under
this Act, all such unlawful articles may be seized without warrant by
any peace officer, or the proprietor of the copyright, or any person
authorized by him, and forthwith taken before any justice of the
peace, court, sheriff, or other person having jurisdiction in any pro-
ceeding under this Act, and upon proof that such copies, repetitions,
or imitations were unlawfully made, they shall be forfeited and de-
livered up to the registered proprietor for the time being of the copy-
right as his property."

We think, however, that the words " carry about" might be prop-
erly omitted, as the other words are sufficiently large ; and further,
that it should not be in the power of the proprietor of the copyright,
or any person authorized by him, to seize, but that the clause should
run : " without warrant by any peace officer under the orders and
responsibility of the proprietor of the copyright or of any person
authorized," etc., 01 to that effect.

179. Besides providing penalties for various acts of infringement of
copyright, and for fraudulently marking pictures with the names or
marks of artists who are not the authors of them, which penalties we
think are sufficient for the purpose, the present law prohibits the im-
portation into the United Kingdom, except with the consent of the
proprietor, of all repetitions, copies, or imitations of paintings, draw-
ings or photographs in which there is copyright, which have been made
in any foreign state or in any other part of the British dominions

than the United Kingdom. We think it is desirable to retain this
17

258 THE QUESTION OF COPYRIGHT.

prohibition, and that a somewhat similar prohibition might properly
be extended to the exportation of unlawful repetitions, copies, and
imitations.

180. Whatever powers may be given to search for and seize piratical
copies of paintings, and whatever penalties may be established, the
same should be extended to sculpture and other works of fine art.

Piracy of Lectures.

181. We have already suggested some alterations in the law with
respect to lectures. In case of piracy either by publication or re-
delivery without the author's consent, we think there should be
penalties recoverable by summary process, and that the author should
be capable of recovering damages by action in case of serious injury,
and of obtaining an injunction to prevent printed publication or re-
delivery. If the piracy is committed by printed publication, we
think the author should also have power to seize copies.

COLONIAL COPYRIGHT.

182. We have already shown that in some important respects the
state of the present copyright law, as regards the colonies, is anoma-
lous and unsatisfactory, and we have suggested that a remedy may be
found by providing that publication in any part of Your Majesty's
dominions shall secure copyright throughout those dominions. It is
unnecessary to recapitulate our reasons for making this suggestion,
and we will only add that the difficulties which may arise in arranging
the details of this change in the law, will not, we anticipate, be of a
serious character.

183. There remain, however, other questions of some difficulty
affecting the general body of readers in the colonies, with which we
now proceed to deal.

184. It must be admitted that it is highly desirable that the litera-
ture of this country should be placed within easy reach of the colonies,
and that with this view the Imperial Act should be modified, so as to
meet the requirements of colonial readers.

185. In this country the disadvantage arising from the custom of
publishing books in the first instance at a high price, is greatly less-
ened by the facilities afforded by means of clubs, book societies, and
circulating libraries.

186. These means are not available, and indeed are impracticable,
owing to the great distances and scattered population, in many of the

REPORT OF THE BRITISH COMMISSION. 259

colonies, and until the cheaper English editions have been published
the colonial reader can only obtain English copyright books by pur-
chasing them at the high publishing prices, increased as those prices
necessarily are by the expense of carriage and other charges incidental
to the importation of the books from the United Kingdom.

187. Complaints of the operation of the Copyright Act of 1842 were
heard soon after it was passed, and from the North American prov-
inces urgent representations were made in favor of admitting into
those provinces the cheap United States reprints of English works.
In 1846 the Colonial Office and the Board of Trade admitted the
justice and force of the considerations which had been pressed upon
the Home Government, "as tending to show the injurious effects
produced upon our more distant colonists by the operation of the
Imperial law of copyright." And in 1847 an Act was passed " To
amend the law relating to the protection in the colonies of works
entitled to copyright in the United Kingdom."

188. The principle of this Act, commonly known as the Foreign
Reprints Act, is to enable the colonies to take advantage of reprints
of English copyright books made in foreign states, and at the same
time to protect the interests of British authors.

189. It is provided, " that in case the legislature, or proper legis-
lative authorities in any British possession, shall be disposed to make
due provision for securing or protecting the rights of British authors
in such possession, and shall pass an Act or make an ordinance for
that purpose, and shall transmit the same in the proper manner to
the Secretary of State, in order that it may be submitted to Her
Majesty, and in case Her Majesty shall be of opinion that such Act or
ordinance is sufficient for the purpose of securing to British authors
reasonable protection within such possession, it shall be lawful for
Her Majesty, if she think fit so to do, to express Her royal approval
of such Act or ordinance, and thereupon to issue an Order in Coun-
cil, declaring that so long as the provisions of such Act or ordinance
continue in force within such colony, the prohibitions contained in
the aforesaid Acts {i.e., the Copyright Act of 1842, and a certain
Customs Act), and hereinbefore recited, and any prohibitions con-
tained in the said Acts, or in any other Acts, against the importing,
selling, letting out to hire, exposing for sale or hire, or possessing
foreign reprints of books first composed, written, printed, or pub-
lished in the United Kingdom, and entitled to copyright therein shall
be suspended so far as regards such colony."

26o THE QUESTION OF COPYRIGHT.

igo. Although the Act is general in its terms, the British posses-
sions in North America were specially in view when it was passed,
and for the following reason : — Between this country and the United
States there was no existing copyright treaty, and it was the practice
of the United States publishers to reprint in their own country Eng-
lish works at very cheap rates. These cheap copies, owing to various
difficulties in giving practical effect to the provisions of the law pro-
hibiting the importation, were largely introduced into Your Majesty's
North American possessions.

191. Certain colonies, among others Canada, made what was at
the time accepted by Your Majesty in Council as sufficient provision
for securing the rights of British authors, and thus brought themselves
under the Act.

192. The provision made by the Canadian legislature was, that
American i-eprinti of English copyright works might be imported into
the colony on payment of a customs duty of 12^- per cent., which
was to be collected by the Canadian Government and paid to the
British Government for the benefit of the authors interested. Like
provisions were made in other colonies.

193. So far as British authors and owners of copyright are con-
cerned, the Act has proved a complete failure. Foreign reprints of
copyright works have been largely introduced into the colonies, and
notably American reprints into the Dominion of Canada, but no
returns, or returns of an absurdly small amount, have been made to
the authors and owners. It appears from official reports that during
the ten years ending in 1876, the amount received from the whole of
the ninteeen colonies which have taken advantage of the Act was
only 1,155/. 13s. 2\d., of which 1,084/. I3*- 3?d- was received from
Canada ; and that of these colonies, seven paid nothing whatever to
the authors, while six now and then paid small sums amounting to a
few shillings.

194. These very unsatisfactory results of the Foreign Reprints Act,
and the knowledge that the works of British authors, in which there
was copyright not only in the United Kingdom but also in the colo-
nies, were openly reprinted in the United States, and imported into
Canada without payment of duty, led to complaints from British
authors and publishers ; and strong efforts were made to obtain the
repeal of the Act.

195. A counter-complaint was advanced by the Canadians. They
contended that although they might import and sell American re-

REPORT OF THE BRITISH COMMISSION. 26l

prints on paying the duty, they were not allowed to republish British
works, and to have the advantage of the trade, the sole benefit of
which was, in effect, secured for the Americans. In defence of
themselves against the charge of negligence in collecting the duty,
they alleged that owing to the vast extent of frontier and other local
causes, and also from the neglect of English owners of copyright to
give timely notice of copyright works to the local authorities, they
had been unable to prevent the introduction of American reprints into
the Dominion.

196. The Canadians proposed that they should be allowed to re-
publish the books themselves under licenses from the Governor-Gen-
eral, and that the publishers so licensed should pay an excise duty of
12^ per cent, for the benefit of the authors. It was alleged thnt by
these means the Canadians would be able to undersell the Americans,
and so effectually to check smuggling ; and further that the British
author would be secured his remuneration, as the money would be
certain to be collected in the form of an excise duty, though it could
not be collected by means of the customs. Objections, however,
were made to the proposal, and it was not carried out.

197. These considerations led to the suggestion that republication
should be allowed in Canada under the authors' sanction, and copy-
right granted to the authors in the Dominion ; and upon this a ques-
tion arose whether Canadian editions, which would be probably much
cheaper than the English, should be allowed to be imported into the
United Kingdom and the other colonies.

198. Matters were in this state when " The Copyright Act of 1875 "
was passed by the Dominion legislature. The Act was sent over in
the form of a Bill reserved for Your Majesty's assent ; but as doubts
were entertained whether the Act was not repugnant to Imperial leg-
islation, and to the Order in Council made in 1868, by which the
prohibitions against importing foreign reprints into the Dominion of
Canada had been suspended, power was given to Your Majesty by an
Imperial Act passed in 1875 to assent to the Canadian Bill, and thus
make it law. Your Majesty's assent was subsequently given.

199. It is in this Imperial Act that a clause will be found, which
has been strongly objected to by Mr. Farrer in his evidence before us,
prohibiting the importation into the United Kingdom of Canadian
reprints.

200. The Canadian Act gave to any person domiciled in Canada,
or in any part of the British possessions, or being a citizen of any

262 THE QUESTION OF COPYRIGHT.

country having an international copyright treaty with the United King-
dom, being the author of any literary or artistic work, power to obtain
copyright in Canada for 28 years, by printing, and publishing, or re-
printing, or republishing, or, in the case of works of art, by produc-
ing or reproducing his work in Canada, and fulfilling certain specified
conditions. The copyright thus capable of being secured by British
copyright owners is in addition to and concurrent with the copyright
they have throughout the British dominions under the Imperial Act.

201. The Dominion Act has been in force for so short a time that
it is difficult to ascertain its full effect ; but from a return obtained
from Canada by the Secretary of State for the Colonies in November
1876, it appears that 31 works of British authors had been published
in Canada under the Act up to that date. A comparison of the prices
of these works shows that if the English editions were sold in Canada
at any price over about half a dollar, or 2s., there was a reduction
more or less considerable in the price of the Canadian edition, the
reduction in one instance being as great as from $12.60 or 2/. nx,
S>\d. to $1.50 or 6s. i%d. It also appears that of many of the books
republished in Canada under the Act the American reprints were, as
a rule, kept out of the Dominion ; and that the prices of American
reprints sold in the Dominion were higher than those of the Cana-
dian reprints.

202. We have thought it desirable to give this brief sketch of the
law of colonial copyright, as it enables us to explain more clearly the
questions we have had to consider. The remedies we propose are
intended to meet the grievance put forward by the colonial readers.

203. The main grievance, as we have already pointed out, lies in
the difficulty experienced by the colonists in procuring, at a suffi-
ciently cheap price, a supply of English copyright books.

204. The Canadian Copyright Act of 1875 may have the effect in
time of securing cheap editions of British works in the Dominion.
But, in the first place it is too soon to judge of this, and no similar
Act has, as yet, been passed in other colonies ; and in the second
place, it is questionable whether such an Act would work at all in
small colonies.

205. We may at once state that we do not propose to interfere with
the Canadian Copyright Act, 1875, or with the principle of that law.

206. We recommend that the difficulty of securing a supply of
English literature at cheap prices for colonial readers be met in two
ways : 1st. By the introduction of a licensing system in the colonies ;

REPORT OF THE BRITISH COMMISSION. 263

and 2d. By continuing, though with alterations, the provisions of
the Foreign Reprints Act.

207. In proposing the introduction of a licensing system, it is not
intended to interfere with the power now possessed by the Colonial
Legislatures of dealing with the subject of copyright, so far as their
own colonies are concerned. We recommend that in case the owner
of a copyright work should not avail himself of the provisions of the
copyright law (if any) in a colony, and in case no adequate provision
be made by republication in the colony or otherwise, within a rea-
sonable time after publication elsewhere, for a supply of the work
sufficient for general sale and circulation in the colony, a license may,
upon an application, be granted to republish the work in the colony,
subject to a royalty in favor of the copyright owner of not less than a
specified sum per cent, on the retail price, as may be settled by any
local law. Effective provision for the due collection and transmission
to the copyright owner of such royalty should be made by such law.

208. We do not feel that we can be more definite in our recom-
mendation than this, nor indeed do we think that the details of such a
law could be settled by the Imperial Legislature. We should prefer to
leave the settlement of such details to special legislation in each colony.

209. With regard to the continuance of the Foreign Reprints Act,
we have already stated that strong efforts have been made to procure
its repeal. In March 1870, at a meeting of the leading authors and
publishers over which the late Earl Stanhope presided, the following
resolution was passed : ' ' That a representation be made to the Right
Honorable the First Lord of the Treasury, pointing out the great
hardship sustained by British authors and publishers from the opera-
tion of the Imperial Copyright Act of 1847, and stating the earnest
desire they feel that Her Majesty's Government may deem it right
to propose its prompt repeal."

210. We are fully sensible of the weight that must attach to the
opinion of persons so qualified to form a judgment on this matter,
but upon careful consideration of the subject and of the peculiar
position of many of Your Majesty's colonies — and upon this point we
would refer to the answers returned by the colonies to Lord Kimber-
ley's Circular Dispatch of the 29th July 1873— we are not prepared
to recommend the simple repeal of the Act of 1847, and the conse-
quent determination of the power now vested in Your Majesty, of
allowing the introduction of foreign reprints into colonies which have
made due provision for securing the rights of British authors.

264 THE QUESTION OF COPYRIGHT.

211. We believe that although the system of republication under
a license may be well adapted to some of the larger colonies, which
have printing and publishing firms of their own, and which could
reprint and republish for themselves with every prospect of fair re-
muneration, it would be practically inapplicable in the case of many
of the smaller colonies. These latter now depend almost wholly on
foreign reprints for a supply of literature ; and to sweep away the
Foreign Reprints Act without establishing some other system of sup-
ply would be to deprive them in a great measure of English books.

212. But we are of opinion that it has been proved necessary to
amend the existing law, for the purpose of more effectually protect-
ing the rights of owners of copyright, whilst affording to colonial
readers the means of making themselves acquainted with the litera-
ture of the day.

213. As the provisions hitherto made in the different colonies to
which Orders in Council have been applied, have failed to secure
remuneration to proprietors of copyright, we recommend that power
should be given to Your Majesty to repeal the existing Orders in
Council ; and that no future Order in Council should be made under
that Act until sufficient provision has been made by local law for
better securing the payment of the duty upon foreign reprints to the
owners of copyright works.

214. Probably it will be desirable to grant a certain period to the
colonies, for the purpose of enabling them to propose further and
better provisions, before such revocation actually takes place. In
that case, however, it should be clearly understood that Your Majesty
is in no way pledged, by the grant of such delay, to issue any fresh
Order in Council ; and power should be given to Your Majesty in
Council to revoke, at any time, any future Order in Council, should
the provisions of the colonial law prove practically insufficient.

215. It is perhaps hardly within the scope of this Commission to
suggest what provisions Your Majesty should be advised to consider
sufficient, within the meaning of the Act, to secure the rights of the
proprietors of copyright. But it appears to us that possibly some
arrangement might be effected, by which all foreign reprints should
be sent to certain specified places in the colony, and should be there
stamped with date of admission upon payment of the duty, which
could then be transmitted here to the Treasury or Board cf Trade
for the author. All copies of foreign reprints not so stamped should
be liable to seizure, and it is worthy of consideration whether some

REPORT OF THE BRITISH COMMISSION. 265

penalty might not also be affixed to the dealing with unstamped
copies.

216. And, having regard to the power which we have contem-
plated, for authors to obtain colonial copyright by republication in
the colonies, and to the licensing system which we have suggested,
we recommend that where an Order in Council for the admission of
foreign reprints has been made, such reprints should not, unless with
the consent of the owner of the copyright, be imported into a colony —

1. Where the owner has availed himself of the local copyright law,

if any ;

2. Where an adequate provision, as pointed out in paragraph

207, has been made ; or,

3. After there has been a republication under the licensing system.

217. A subject of great moment with reference to colonial copy-
right, is the propriety of permitting the introduction of colonial
reprints into the United Kingdom. This question has given rise to
much discussion, as may be seen by reference to the correspondence,
which, at the time The Canadian Copyright Act, 1875, was under
consideration, passed between the Colonial Office and the Board of
Trade. Ultimately the 4th section of that Act was passed by which
it is enacted, that, where any British copyright work has acquired
copyright in Canada under the colonial Act by republication, it is
unlawful for any person other than the owner to import Canadian
reprints into the United Kingdom. This provision is analogous to
that in force in the case of books reprinted in foreign countries.

218. We have been urged to recommend the repeal of that section,
so far at all events as to admit the importation into the United King-
dom of copies published with the consent of the copyright owner.

219. We may state generally that authors and publishers, who are
the persons most interested in copyrights, are strongly opposed to the
introduction of colonial reprints into the United Kingdom, on the
following grounds : — That the cheaper price of those reprints would
cause great pecuniary loss to the owners of copyrights : — that the
present system of trade, which has been found most remunerative to
authors and publishers, would be disarranged : — and that publishers
would not be willing or able to offer so much to authors for their works.

220. It is argued that, if importation is allowed, no copyright
owner will consent to republication in the colonies by himself or
others, because all such republications, being made with his consent,

266 THE QUESTION OF COPYRIGHT.

would be liable to be introduced here, and that the colonial readers
would therefore suffer to a certain extent by the alteration in the law.
This last argument will, however, lose its force, if effect is given to
our suggestion of permitting republication in the Colonies under a
licensing system.

221. The arguments in favor of admission of colonial reprints are
based on consideration of the public interest, which is alleged to be
greatly injured by the high prices at which books are now published
— prices that are altogether prohibitory to the great mass of the
reading public ; and it is said that if the cheaper colonial editions
were to be allowed in this country, the necessary effect would be that
prices generally would be greatly reduced.

222. It is also urged that if the law gives British copyright owners
the benefit of copyright throughout the empire, and the exclusive
command of the colonial market, it is unfair to the British public
that they should be deprived of the advantage they might derive
from that extended copyright, and that they should be the only sec-
tion of Your Majesty's subjects who are debarred from participating
in the advantages of cheap colonial editions.

223. It is also said that it is a mistake to suppose that authors
would really be injured by the introduction into the United King-
dom of the colonial editions, for that the profit which would be de-
rived from the extended market would more than compensate for the
loss resulting from publication at lower prices. Thus the public
would derive the benefit of cheap literature, while authors would
reap profit equal to or greater than that they now enjoy.

224. The witness who principally advocated the introduction of
these reprints was Mr. Farrer, the Permanent Secretary to the Board
of Trade, which is the department specially charged with legislation
affecting copyright. Having regard to the great attention he has
devoted to the subject and to his official position, we desire to state
that we think his opinions are entitled to much consideration. The
arguments adduced by him will be found fully stated in his evidence.

225. We have carefully weighed this evidence with the views of
other persons who are opposed to the introduction of colonial reprints
into the United Kingdom ; and on the whole we think that the ad-
mission of such reprints would probably operate injuriously towards
British authors and publishers, and that it is doubtful if it would be
attended in many cases with the result anticipated by Mr. Farrer,
that is to say, the cheapening of books for home consumption. We

REPORT OF THE BRITISH COMMISSION. 267

think the almost certain result would be, that it would operate as a
preventive to republication in the colonies by authors themselves,
so that, if no publisher republished under the licensing system,
the colonial reader would be in no better condition than he is now.

226. We therefore think that colonial reprints of copyright works
first published in the United Kingdom should not be admitted into
the United Kingdom without the consent of the copyright owners ;
and, conversely, that reprints in the United Kingdom of copyright
works first published in any colony should not be admitted into such
colony without the consent of the copyright owners.

227. It will have been observed that in suggesting the above alter-
ations in the existing law of copyright, we have not proposed to
interfere with the existing powers of colonial legislatures to deal
with this subject. An author who first publishes in a colony should
only be entitled to secure copyright throughout the British dominions,
if he complies with the requirements of the copyright law for the
time being of that colony. It will rest, therefore, with each colonial
legislature to determine the nature of those requirements, such as
registration, deposit of copy, and so forth ; and we cannot doubt
that they will be alive to the expediency of adopting for the colony,
so far as it is practicable, the principal provisions of the Imperial
Act, which, if effect be given to our suggestions, will, as to all such
matters of detail, be hereafter limited to the United Kingdom. By
this means uniformity of practice will be secured throughout Your
Majesty's dominions, and certain difficulties will be avoided, which
might arise if, for example, registration were in some colonies com-
pulsory, and in others voluntary.

228. But important as uniformity is in matters of detail, it be-
comes still more important in respect to the term to be fixed for the
duration of copyright. As the law now stands, we apprehend that
each colony has a right to decide what shall be the term during
which an author who publishes in the colony shall have copyright
therein. The exercise of this power does not, it is true, override the
provisions of the Imperial Act, which gives copyright in such colony
to a work first published in the United Kingdom, but the existence
of this double term is inconvenient. If, as we recommend, publica-
tion in any colony shall for the future secure copyright throughout
all Your Majesty's dominions, in the same way and for the same
term as if the work had been first published in this country, the
necessity for fixing a term for duration of a copyright in a colony

268 THE QUESTION OF COPYRIGHT.

will practically cease. In truth the difference between colonial and
imperial copyright will disappear, as colonial copyright will merge
into imperial copyright ; and we may fairly assume that where, as
in Canada and at the Cape, a term has been fixed for copyright in
the colony different from that fixed by the Imperial Act, the colonial
legislature will be ready to repeal pro tanto the colonial law, and to
confine legislation to matters of detail.

229. Should, however, our anticipations on this point be incorrect,
it will become a question whether, with a view to secure uniformity,
the concession to any colony might not be made conditional upon
the adoption by the legislature of such colony of the same term as
that fixed for the time being by the Imperial Act.

230. In concluding our remarks upon this part of the subject, we
recommend that the production of a copy of the colonial register
(if any), certified by some duly authorized officer in that behalf, shall
be prifnd facie evidence in Your Majesty's Courts of compliance
with the requirements of the local law, and of the title to copyright
of the person named therein. A provision to this effect would have
to be made by the different colonial legislatures for the guidance of
colonial courts.

231. It has been suggested to us that some re-registration, or
notice of the original registration, should be made in England of a
work published in a colony, and that a copy of every work published
in the colonies should be deposited at the British Museum, within a
certain time after publication. Upon the whole we are not disposed
to recommend the adoption of either of these suggestions. Publi-
cation in a colony will give copyright throughout the British domin-
ions, and if re-registration of the work is desirable in England, it is
equally so in all the other British possessions in which the work ob-
tains copyright. But to require such a general re-registration would
throw a considerable burden upon the owners of colonial copyright,
and it appears to us not unreasonable to call upon a person who
desires to reprint a work which has already been published to take
the necessary steps to ascertain whether the work has been duly pub-
lished and, if necessary, registered in the place of publication, and
whether the term of copyright has expired. Should, however, a
notice of registration be thought desirable, we suggest that it should
be officially given by the registering department in the United
Kingdom or colony ; and the fee for original registration might be
made to cover the expenses of giving such notice.

REPORT OF THE BRITISH COMMISSION. 269

232. As regards the second suggestion, we are of opinion that the
Trustees of the British Museum may fairly be expected to purchase
such colonial works as they want, considering that the author or
owner of the copyright will doubtless be required by local law to
deposit a copy in the place of publication. Indeed it was stated to
us by officers of the British Museum that many such works are now
purchased.

INTERNATIONAL COPYRIGHT.

The American Question.

233. As to continental nations, few questions have, in the course
of our inquiry, been raised with regard to the general regulations of
international copyright ; but we find it to be impossible to exclude
from examination the present condition of the copyright question
between Great Britain and the United States. There is no inter-
national protection of copyright as between ourselves and the
Americans, although, owing to causes to be presently referred to,
the United States is of all nations the one in which British authors
are most concerned, — the nation in regard to which the absence of a
copyright convention gives rise to the greatest hardships.

234. When deciding upon the terms in which we should report
upon this subject, we have felt the extreme delicacy of our position
in expressing an opinion upon the policy and laws of a friendly
nation, with regard to which a keen sense of injury is entertained by
British authors. Nevertheless, we have deemed it our duty to state
the facts brought to our knowledge, and frankly to draw the conclu-
sions to which they lead.

235. Although with most of the nations of the continent treaties
have been made, whereby reciprocal protection has been secured for
the authors of those countries and Your Majesty's subjects, it has
hitherto been found impracticable to arrange any terms with the
American people. We proceed to indicate what in our view are the
difficulties which have impeded a settlement.

236. The main difficulty undoubtedly arises from the fact that,
although the language of the two countries is identical, the original
works published in America are, as yet, less numerous than those
published in Great Britain. This naturally affords a temptation to
the Americans to take advantage of the works of the older country,
and at the same time tends to diminish the inducement to publish

270 THE QUESTION OF COPYRIGHT.

original works. It is the opinion of some of those who gave evi-
dence on this subject, and it appears to be plain, that the effect of
the existing state of things is to check the growth of American lit-
erature, since it is impossible for American authors to contend at a
profit with a constant supply of works, the use of which costs the
American publisher little or nothing.

237. Were there in American law no recognition of the rights of
authors, no copyright legislation, the position of the United States
would be logical. But they have copyright laws ; they afford pro-
tection to citizen or resident authors, while they exclude all others
from the benefit of that protection. The position of the American
people in this respect is the more striking, from the circumstance
that, with regard to the analogous right of patents for inventions,
they have entered into a treaty with this country for the reciprocal
protection of inventors.

238. Great Britain is the nation which naturally suffers the most
from this policy. The works of her authors and artists may be and
generally are taken without leave by American publishers, sometimes
mutilated, issued at cheap rates to a population of forty millions,
perhaps the most active readers in the world, and not seldom in
forms objectionable to the feelings of the original author or artist.

239. Incidentally, moreover, the injury is intensified. The circu-
lation of such reprints is not confined to the United States. They
are exported to British colonies, and particularly to Canada, in all
of which the authors are theoretically protected by the Imperial law.
The attempts which were made, by legalizing the introduction of
these reprints into Canada, to secure a fair remuneration to British
copyright owners have, as we have shown, completely failed.

240. This system of reproduction is not confined to books, but
extends to music and the drama, and we have been told that it is not
an uncommon thing when a new play by an author of eminence is
produced in London, for shorthand writers to attend and take down
the words of the play for transmission to the United States.

241. But though there is no law in the United States to protect a
foreign work from republication by any number of publishers, the
natural result of general publication and rivalry was to make the
competition which arose disastrous to those engaged in it. Firms of
eminence and respectability rivaled each other in the efforts of their
agents in England to secure early sheets of important works, but
when the sheets were obtained, and an edition issued at a moderate
price, some other firm would undertake to supply the public with

REPORT OF THE BRITISH COMMISSION. 271

the same article at a lesser rate. American publishers were thus
obliged to take steps for their own protection. This was effected by
an arrangement among themselves. The terms of this understand-
ing are, that the trade generally will recognize the priority of right
to republication of a British work as existing in the American pub-
lisher who can secure priority of issue in the United States. This
priority may be secured either by an arrangement with the author, or
in any other way. The understanding, however, is not legally binding,
and is rather a result of convenience and of a growing disposition
to recognize the claims of British authors, than of actual agreement.

242. The effect of this trade understanding has no doubt been
profitable to a certain number of British copyright owners, since,
now that American publishers are practically secured from competi-
tion at home, it is worth while for them to rival each other abroad
in their offers for early sheets of important works. We are assured
that there are cases in which authors reap substantial results from
these arrangements, and instances are even known in which an Eng-
lish author's returns from the United States exceed the profits of his
British sale, but in the case of a successful book by a new author it
would appear that this understanding affords no protection. Even
in the case of eminent men, we have no reason to believe that the
arrangements possible under the existing conditions are at all equiv-
alent to the returns which they would secure under a copyright con-
vention between Your Majesty and the United States.

243. We may remark in this place that as authors of books in
some cases obtain payment for early sheets from American publish-
ers, so also dramatic authors of note sometimes obtain remuneration
for the right to perform their plays. There appears, however, to be a
difference in the law relating to books and plays in the United States ;
for although the English author of a book can give no copyright to an
American publisher, yet it is stated that the author of an English play
can give an American theatrical manager a right of representation, if the
play has not been published anywhere as a book, and for this purpose a
distinction is made between such publication and public performance.

244. It is, without doubt, a general opinion that a copyright con-
vention with the United States is most desirable. We have, there-
fore, endeavored during our inquiry to ascertain the feeling of Amer-
icans on the subject, and wherein, if at all, their interests would be
prejudiced. We have also endeavored to find out what practical
difficulty there is in the way of such a convention, and if by any
means such difficulty can be surmounted.

272 THE QUESTION OF COPYRIGHT.

245. It may be stated that American authors have not the same
need of a convention as those of Great Britain, since our law affords
copyright protection throughout the British dominions to foreigners
as well as to Your Majesty's subjects, provided they publish their
books in the United Kingdom before bringing them out elsewhere,
while the American law, unlike ours, does not make first publication
at home a condition for obtaining copyright. It is consequently the
practice of some American authors to publish their books first in
England, and so to obtain British copyright, and then to republish
them in the United States and obtain American copyright, or to
publish in the two countries almost simultaneously.

246. We have it in evidence from Mr. Putnam, a member of a
large American publishing firm, that American authors are unani-
mous as to the advantage of international copyright between the
United States and this country. We have also been told by another
American witness that as publishers can bring out reprints of Eng-
lish books without paying the authors, it is so much more to their
interest to do so than to pay American authors, that they frequently
refuse to publish American works unless at a low rate of payment.
Hence it appears that, in the opinion of many Americans, interna-
tional copyright is desirable for American authors.

247. This question has been before the United States legislature
on more than one occasion, and the Senate has twice agreed in a
recommendation made to them by the Government on the subject.

248. We are therefore satisfied that, though there are other ob-
stacles, the most active opposition in the United States arises from
the publishing and printing interests. It is feared that if there were
international copyright, British authors would be able to select their
own mode of manufacturing their books, and to choose their own
publishers, and that they would in many cases have their books
printed in this country, and perhaps prepared for sale, so as to avoid
the expense of producing them in America. Moreover, the Ameri-
can publisher fears the competition of the English publisher, because
at the present time books cannot be as cheaply manufactured in the
United States as in Great Britain ; and, but for the protective tariff,
there would no doubt be a great inducement to British publishers to
compete with those of America in the large and important market of
the United States.

249. These fears have indeed been urged with a discouraging
effect upon the negotiations and proposals for international copy-
right, and have induced the Americans to claim that the privilege of

REPORT OF THE BRITISH COMMISSION. 273

copyright in the United States should only be granted on condition
that the book is wholly re-manufactured and republished in America.
On the other hand the British copyright owner feels that such condi-
tions would lead, in many cases, to a useless outlay for the re-manufact-
ure of stereotype plates and the reproduction of illustrations, practically
at his expense and to his loss, because this outlay would have to be
taken into account by the publisher in considering the sum he could
afford to pay for authorship. While the English author desires not to
be restricted in the selection of a publisher, he apparently does not
care much whether the publisher be an American or an Englishman.

250. Although it has hitherto been the practice, we believe, of
Your Majesty's Government to make international copyright treaties
only with countries which are willing to give British subjects the full
advantage of their domestic copyright laws, untrammeled by com-
mercial restrictions, in exchange for the protection afforded to their
subjects by our own copyright laws, yet we think it not unreason-
able for the American people to wish to insure the publication of
editions suited to their large and peculiar market, if they enter into
a copyright treaty with this country. On the whole, therefore, we
are of opinion that an arrangement by which British copyright
owners could acquire United States copyright by reprinting and
republishing their books in America, but without being put under
the condition of reproducing the illustrations or re-manufacturing
the stereotype plates there, would not be unsatisfactory to Your
Majesty's subjects, and that it would be looked upon more favorably
in the United States than any other plan now before us.

251. It has been suggested to us that this country would be justi-
fied in taking steps of a retaliatory character, with a view of enforc-
ing, incidentally, that protection from the United States which we
accord to them. This might be done by withdrawing from the
Americans the privilege of copyright on first publication in this
country. We have, however, come to the conclusion that, on the
highest public grounds of policy and expediency, it is advisable that
our law should be based on correct principles, irrespective of the
opinions or the policy of other nations. We admit the propriety of
protecting copyright, and it appears to us that the principle of copy-
right, if admitted, is one of universal application. We therefore
recommend that this country should pursue the policy of recognizing
the author's rights, irrespective of nationality.

******
294. In concluding our labors we beg leave to express our hope
18

274 THE QUESTION OF COPYRIGHT.

that we have duly considered and made our report upon all the mat-
ters intended to be referred to us by Your Majesty's Commission.
We are conscious that there may be points of detail upon which we
have not touched, but these, if noticed by us, would have lengthened
our Report, without, as we think, affording any substantial assistance
to those upon whom the duty of legislating may hereafter devolve.

All which is humbly submitted to Your Majesty's gracious con-
sideration.

Dated the 24th day of May 1878.

JOHN MANNERS.

Subject to my Dissent from a part of paragraph 150.

DEVON.

CHARLES LAWRENCE YOUNG.

Subject to my Note appended hereto.

H. T. HOLLAND.
JOHN ROSE.

Subject to Dissent and Separate Report.

H. DRUMMOND WOLFF.

Subject to my Separate Report and Dissent from part
of paragraph 150.

J. F. STEPHEN.

Subject to a Note appended hereto.

JULIUS BENEDICT.

F. HERSCHELL.

EDWARD JENKINS.

Subject to my Separate Report.

WM. SMITH.

Subject to my Dissent from a part of paragraph 150.

J. A. FROUDE.
ANTHONY TROLLOPE.

Subject to my Note of Dissent as to paragraphs 153
and 154.
FREDERICK RICHARD DALDY.

Subject to my Note of Dissent as to paragraphs 147
and 154.

For the Notes of Dissent referred to by certain of the signers,
space for which could not conveniently be found in this volume, the
reader is referred to the Report of the Commission contained in the
Blue Book, No. 2036, series of 1878. — Editor.

XV.

THE COPYRIGHT BILL OF THE BRITISH
SOCIETY OF AUTHORS, INTRODUCED
INTO THE HOUSE OF LORDS, NO-
VEMBER 26TH, 1890. BY LORD MONKS-
WELL.1

GENERAL PROVISIONS AND LITERARY COPYRIGHT.

6. This Act shall, except when expressly provided to the contrary,
apply only to copyright works other than paintings and sculpture first
published after, and to paintings and sculpture which shall be or
shall have been made, and which shall not have been sold or dis-
posed of before the passing of this Act, and not to copyrights existing
at the commencement, nor to such works published, sold, or disposed
of respectively before the commencement of this Act, nor to any
copyright to which a person may be entitled under any law of a British
possession ; and all expressions in this Act referring to copyright
shall, unless the context otherwise requires, be construed as referring
to copyright under this Act only, and all rights and remedies to which
a person may be entitled under this Act shall be in addition to and
not in derogation of any rights and remedies to which he may be
entitled in any British possession under the law of that possession.

7. — (1.) The copyright or performing right which at the time of the
passing of this Act shall be subsisting in any book or other subject
of copyright or performing right theretofore published, sold, or dis-
posed of (as the case may be), shall endure for the term limited by
the existing enactments, or for the term fixed by this Act, which-
ever is the longer, and shall be the property of the person who at the
time of passing this Act shall be the proprietor of such copyright or
performing right.

1 Space is found here only for a summary of the more important
provisions.

276 THE QUESTION OF COPYRIGHT.

(2.) Provided always, that in all cases in which such copyright or
performing right shall belong in whole or in part to a publisher or
other person who shall have acquired it for other consideration than
that of natural love and affection, such copyright or performing right
shall not be extended by this Act, but shall endure for the term
which shall subsist therein at the time of passing this Act, and no
longer, unless the original copyright owner, if he shall be living, or
his personal representative if he shall be dead, and the proprietor of
such copyright or performing right shall, before the expiration of
such term, agree to accept the benefits of this Act in respect of such
book or other subject of copyright or performing right, and shall
cause a minute of such consent in the form in that behalf given in
Schedule Three to this Act to be entered in the proper register, in
which case such copyright or performing right shall endure for the
term fixed by this Act, and shall be the property of such person or
persons as in such minute shall be expressed.

8. The Acts or parts of Acts specified in the First Schedule to this
Act are hereby repealed as from the commencement of this Act, ex-
cept with relation to copyrights already existing, and works other
than paintings and sculpture already published at, and paintings and
sculpture sold or disposed of before the commencement of this Act,
but the said Acts shall remain in as full force and effect for the pur-
pose of and with relation to such copyrights and works as if this Act
had not been passed.

9. Copyright and performing right shall respectively be deemed to
be personal property in England, and personal and movable estate
in Scotland, and subject to the provisions of this Act, shall be capable
of assignment and transmission by operation of law as such.

10. The copyright and performing right in a posthumous work shall
belong in the case of a book, musical composition, dramatic work,
lecture, piece for recitation, address or sermon, to the owner of the
manuscript ; in the case of a print to the owner of the plate, stone or
other thing on which the design is engraved ; and, in the case of a
photograph, to the owner of the negative.

11. — (1.) Every assignment of copyright or performing right other
than an assignment by operation of law or testamentary disposition,
shall be in writing, signed by the assignor or his agent, duly author-
ized in writing.

(2.) No assignment of or other dealing with any subject of copy-
right or performing right (other than an assignment by operation of

THE MONKSWELL BILL. 2JJ

law or testamentary disposition) shall pass the copyright or perform-
ing right therein unless the intention to assign the same shall be ex-
pressly evidenced in writing, signed as aforesaid.

12. If the owner of the copyright or performing right in any work
shall give permission to another person to copy, imitate, perform or
otherwise repeat such work, such permission shall not, in the absence
of an express agreement to the contrary, disentitle such owner from
giving a similar or any other permission with respect to the same
work, even though the first person to whom such permission was
given has acquired copyright or performing right in his work.

13. It shall be lawful for Her Majesty in Council, on complaint
that the owner of copyright in any book, musical composition, or
dramatic work, after the death of its author or composer, has refused
to republish or allow republication or public performance of the same,
and that by reason of such refusal such book, musical composition or
dramatic work is withheld from the public, to grant a license to the
complainant to republish such book, musical composition or dramatic
work, or to publicly perform or procure public performances of the
same in such manner and subject to such conditions as She may
think fit.

14. After the commencement of this Act the following persons
and their assigns, whether British subjects or aliens, shall, subject to
the provisions of this Act, be entitled to copyright therein, through-
out the British dominions, provided such works shall have been first
published in some part of the British dominions ; that is to say —

(a.) In the case of books, the author of any original work :

(b.) In the case of lectures, pieces for recitation, addresses or ser-
mons, the author of any original lecture, piece for recitation, address
or sermon :

{c.) Provided always that if a British subject who, under the pro-
visions of this section, would otherwise be entitled to copyright in
any work shall first publish such work in some state, the subjects
whereof shall not, at the date of such publication, be entitled to copy-
right in the British dominions, under the provisions of this Actor of
the Acts mentioned in the Second Schedule hereto, he shall, on re-
publishing such work in the British dominions within three years of
such first publication, be entitled to copyright therein as fully as if
he had first published such work in the British dominions.

15. Copyright in books, lectures, pieces for recitation, addresses
and sermons shall endure for the following terms : —

278 THE QUESTION OF COPYRIGHT.

(1.) If the work is published in the lifetime and in the true name
of the original copyright owner, for the life of the original copy-
right owner, and thirty years after the end of the year in which his
death shall take place :

(2.) If the work is written or composed by two or more persons
jointly, for the life of the longest liver, and thirty years after the end
of the year in which his death shall take place:

(3.) In the case of posthumous works, for thirty years from the
end of the year in which the same shall have been first published :

(4.) In the case of an anonymous or pseudonymous work for
thirty years from the end of the year in which the same shall have
been first published : Provided always that upon the original copy-
right owner thereof or his personal representative, during the con-
tinuance of the said term of thirty years, with the consent of the
registered copyright owner, making a declaration of the true name
of the " original copyright owner" and the insertion thereof, in the
form set forth in the Schedule Three of this Act in the Register, the
copyright shall, subject to the provisions of this Act, be extended to
the full term of copyright under this Act.

16. — (1.) In the case of any article, essay, or other work whatso-
ever, being the subject of copyright, first published in and forming
part of a collective work for the writing, composition, or making of
which the original copyright owner shall have been paid or shall be
entitled to be paid by the proprietor of the collective work, the copy-
right therein shall, subject as is herein-after mentioned, and in the
absence of any agreement to the contrary, belong to such proprie-
tor for the term of thirty years next after the end of the year in
which such work shall have been first published :

(2.) Except in the case where such article, essay, or other work is
first published in an encyclopaedia, the original copyright owner
thereof and his assigns shall, after the term of three years from the
first publication thereof, have the exclusive right to publish the same
in a separate form, and shall have copyright therein as a separate
publication for the term provided by section fifteen of this Act, and,
notwithstanding anything herein-before contained, the proprietor of
the collective work shall not, either during the said term of three
years, nor afterwards during the continuance of copyright therein,
be entitled to publish such article, essay, or other work, or any part
thereof, in a separate form, without the consent in writing of the
original copyright owner or his assigns.

THE MONKSWELL BILL. 279

17. The original copyright owner of any article, essay, or other
work first published in and forming part of a collective work, may
register the same as a separate book in the manner herein-after pro-
vided (but without the deposit or delivery of any copy thereof at, or
for the use of, the British Museum or other libraries), and shall there-
upon be entitled to prevent and obtain damages for the publication
of, or other infringement of the copyright in such article, essay, or
other work as if it were a separate book, notwithstanding that the
said term of three years has not elapsed.

18. — (1.) The copyright in a joint work being a book, lecture,
piece for recitation, address or sermon shall, in the absence of any
agreement to the contrary, belong to the persons by whom the same
is written or composed jointly, and no one of such persons shall be
deemed to be the owner of the copyright in any particular part of
the work to the exclusion of the other or others.

(2.) In the event of the death of any one of such joint owners,
his interest shall, in the absence of any testamentary or other dis-
position to the contrary, vest in the person or persons who would be
entitled to the copyright in any work of which he had been the sole
writer or composer.

19. The copyright given by this Act in respect of newspapers
shall extend only to articles, paragraphs, communications, and other
pans which are compositions of a literary character, and not to any
articles, paragraphs, communications, or other parts which are de-
signed only for the publication of news, or to advertisements.

20. Whereas by an Act passed in the fifteenth year of King
George the Third, certain copyrights in books are now, or might
hereafter become, vested in the Universities of Oxford and Cam-
bridge, in the colleges or houses of learning within the same, the
four universities of Scotland, or the several colleges of Eton, West-
minster, and Winchester, in perpetuity, and certain special and
peculiar penalties are provided against persons who infringe such
copyright : And whereas the said Act is repealed by this Act, but it
is not desirable or just that the said universities and colleges should
be deprived of the copyrights they already possess, by virtue of the
said Act ; be it enacted, that the repeal of the said Act shall not
operate to deprive the said universities and colleges of any copy-
rights they already possess in perpetuity under the said Act, and
that instead of the special and peculiar penalties provided by the
said Act the said universities and colleges respectively shall, in case

280 THE QUESTION OF COPYRIGHT.

of infringement of their said copyrights, be entitled to the remedies
and to enforce the forfeitures and penalties provided for infringe-
ment of copyright in books by this Act.

21. The following acts by any person other than the copyright
owner, and without his consent in writing, shall be deemed to
be infringements of copyright, unless such acts shall be specially
permitted by the terms of this or some other Act not hereby
repealed :

(i.) In the case of books, printing or otherwise multiplying, or
causing to be printed or otherwise multiplied, for distribution, sale,
hire, or exportation, copies, abridgments, or translations of any
copyright book or any part thereof ; exporting for sale or hire any
such copies, abridgments, or translations, printed unlawfully in any
part of the British dominions ; importing any such copies, abridg-
ments, or translations, whether printed unlawfully in any other part
of the British dominions or printed without the consent of the copy-
right owner in any foreign state ; or knowing such copies to have
been so printed or imported, distributing, selling, publishing, or
exposing them for sale or hire, or causing or permitting them to be
distributed, sold, published, or exposed for sale or hire :

(2.) In the case of a book which is a work of fiction it shall also
be an infringement of the copyright therein if any person shall,
without the consent of the owner of the copyright, take the dialogue,
plot, or incidents related in the book, and use them for or convert
them into or adapt them for a dramatic work, or knowing such
dramatic work to have been so made, shall permit or cause public
performance of the same :

(3.) In the case of lectures, pieces for recitation, addresses, or
sermons, whether before or after they are published in print by the
owner of the copyright, the same acts as herein-before declared to
be infringements in the case of books, and if they be not published
in print, by the owner of the copyright, re-delivering them or caus-
ing them to be re-delivered in public.

22. Notwithstanding anything in this Act contained, the making
of fair and moderate extracts from a book in which there is subsist-
ing copyright, and the publication thereof in any other work, shall
not be deemed to be infringement of copyright if the source from
which the extracts have been taken is acknowledged.

23. It shall not be deemed an infringement of copyright in a lect-
ure, piece for recitation, address, or sermon to report the same in a

THE MONKSWELL BILL. 28l

newspaper, unless the person delivering the same shall have pre-
viously given notice that he prohibits the same being reported.

24. For the purposes of this Act any second or subsequent edi-
tion of a book which is published with any additions or alterations,
whether in the letterpress or in the maps or illustrations belonging
thereto, shall be deemed to be a new book.

25- — (1.) The publisher of every book first published in the
United Kingdom shall within one month after publication deliver,
at his own expense, a copy of the book to the trustees of the
British Museum.

(2.) He shall also within the same time deliver at his own expense
a copy of the book to, or in accordance with the directions of, the
authority having the control of each of the following libraries,
namely : the Bodleian Library at Oxford, the Public Library at
Cambridge, the Library of the Faculty of Advocates at Edinburgh,
and the Library of the Holy and Undivided Trinity of Queen Eliz-
abeth near Dublin, or, at the option of the publisher, to the regis-
trar under this Act, to be by him so delivered.

(3.) The copy delivered to the trustees of the British Museum
shall be a copy of the whole book with all maps and illustrations
belonging thereto, finished and colored in the same manner as the
best copies of the book are published, and shall be bound, sewed, or
stitched together, and on the best paper on which the book is
printed.

(4.) The copy delivered to the other authorities mentioned in this
section shall be on the paper on which the largest number of copies
of the book is printed for sale, and shall be in the like condition as
the books prepared for sale.

(5.) Delivery of a copy to the registrar on registration under this
Act shall, for the purposes of this section, be deemed delivery to
the trustees of the British Museum.

(6.) If a publisher fails to comply with this section, he shall incur
a fine not exceeding five pounds and the value of the book, and this
fine shall be paid to the trustees or authority to whom the book
ought to be delivered.

26. — (1.) There shall continue to be charged on and paid out of
the Consolidated Fund of the United Kingdom such annual com-
pensation as is at the passing of this Act payable in pursuance of
any Act as compensation to a library for the loss of the right to
receive gratuitous copies of books.

232 THE QUESTION OF COPYRIGHT.

(2.) Such compensation shall not be paid to a library in any year
unless the Treasury shall be satisfied that the compensation for the
previous year has been applied in the purchase of books for the use
of and to be preserved in the library.

ANALYSIS OF THE BILL.
By Sir Frederick Pollock.

The following Memorandum sets out its contents,
and shows the various authorities for the changes
in present legislation suggested by the Bill.

Memorandum.

This Bill is intended to consolidate and amend the Law of Copy-
right other than copyright in designs.

The existing law on the subject consists of no less than 18 Acts of
Parliament, besides common law principles, which are to be found
only by searching the Law Reports. Owing to the manner in which
these Acts have been drawn, the law is in many cases hardly intel-
ligible, and is full of arbitrary distinctions for which it is impossible
to find a reason. (See paragraphs 9 to 13 of the Report of the Royal
Commission on Copyright of 187S.)

For instance, the term of copyright in books is the life of the author
and 7 years, or 42 years from publication, whichever period is the
longer ; in lectures, when printed and published, the term is proba-
bly the life of the author or 28 years ; in engravings, 28 years ; and
in sculpture, 14 years, with a possible further extension for another
14 years ; while the term of copyright in music and lectures which
have been publicly performed or delivered but not printed is wholly
uncertain.

Again the necessity for and effect of registration is entirely differ-
ent with regard to (1) books, (2) paintings, (3) dramatic works.

In consolidating these enactments (all of which it is proposed to
repeal) it has been thought advisable to deal separately with the vari-
ous subjects of copyright, viz., (1) Literature, (2) Music and Dramatic
Works, and (3) Works of Art, and to make the part of the Bill deal-

THE MONKSWELL BILL. 283

ing with each of these as far as possible complete in itself. This
will account for certain repetitions which might otherwise seem un-
necessary.

The alterations proposed to be made in the law are for the most
part those suggested in the Report of the Royal Commission on Copy-
right of 1S78, and embodied in a Bill introduced at the end of the
Session of 1879 by Lord John Manners, Viscount Sandon, and the
Attorney-General on behalf of the then Government. References
will be found in the margin of the present Bill both to the Report of
the Commission and the Bill of 1879.

The most important of these alterations may be summarized as
follows : —

1. A uniform term of copyright is introduced for all classes of
work, consisting of the life of the author and 30 years after his
death. The only exceptions are in the cases of engravings and
photographs, and anonymous and pseudonymous works for which,
owing to the difficulty or impossibility of identifying the author, the
term is to be 30 years only, with power for the author of an anony-
mous or pseudonymous work at any time during such 30 years to
declare his true name and acquire the full term of copyright.

2. The period after which the author of an article or essay in a
collective work (other than an encyclopaedia) is to be entitled to the
right of separate publication, is reduced from 28 years to 3 years.

3. The right to make an abridgment of a work is for the first
time expressly recognized as part of the copyright, and an abridg-
ment by a person other than the copyright owner is made an infringe-
ment of copyright.

4. The authors of works of fiction are given the exclusive right of
dramatizing the same as part of their copyright, and the converse
right is conferred on authors of dramatic works.

5. The exhibition of photographs taken on commission, except
with the consent of the person for whom they are taken, is rendered
illegal.1

6. Registration is made compulsory for all classes of work in which
copyright exists, except painting and sculpture : that is to say, no
proceedings for infringement or otherwise can be taken before regis-
tration, nor can any proceedings be taken after registration in respect

1 At present it seems to be merely a matter of implied contract (see
Pollard vs. The Photographic Co., 40 Ch. D., 345).

284 THE QUESTION OF COPYRIGHT.

of anything done before the date of registration, except on payment
of a penalty. This penalty, it should be mentioned, was not recom-
mended by the Royal Commission, but is introduced in order that an
accidental omission to register may not entirely deprive the copyright
owner of his remedies. Registration of paintings and sculpture is
made optional owing to their being so frequently subject to altera-
tion that it is practically impossible to say when they are completed,
so as to be capable of registration.

7. Provision is made (in Clause 89) for the seizure of piratical
copies of copyright works which are being hawked about or offered
for sale. Some such provision is required particularly for the pro-
tection of works of Art, and was recommended by the Royal Com-
mission.

The part of the Bill which relates to the fine arts and photography
is taken, almost without alteration, from the Copyright (Works of
Fine Art) Bill which was introduced into the House of Commons in
the session of 18S6 by Mr. Hastings, Mr. Gregory, and Mr. Agnew.
That Bill received the general approval of those interested in the fine
arts ; and although it does not altogether follow the recommendations
of the Royal Commission, there does not appear to be any serious
reason against adopting its provisions.

The part of the Bill which relates to Foreign and Colonial Copy-
right is practically a re-enactment of the provisions of the Interna-
tional Copyright Act, 1886, which was passed in order to carry into
effect the " Berne Convention" for giving to authors of literary and
artistic works first published in one of the countries parties to the
Convention, copyright in such works throughout the other countries
parties to the Convention.

By the earlier parts of the Bill, the same rights are given to Colo-
nial as to British authors ; while the right of the Colonial Legislatures
to deal with the subject is expressly recognized and preserved. The
Foreign Reprints Act of 1847 (10 and II Vict. c. 95) is re-enacted in
the form adopted in the Bill of 1879, but it has not been found possi-
ble to frame provisions for the introduction of any such licensing
system of republication in the Colonies as that suggested by the
Royal Commission. There appear to be great difficulties in provid-
ing for the practical working of any such system, and even if they
could be overcome, it is felt that while it is more than doubtful
whether the colonial reader would benefit to any great extent, the
British copyright owner must suffer considerable loss.

THE MONKSWELL BILL. 285

With regard to registration, the Bill (as was recommended by the
Royal Commission) provides for the establishment of a Copyright
Registration Office, under the control of Government, in lieu of the
present office at Stationers' Hall, established under 5 and 6 Vict. c.
45. This office has even under the present law been found inade-
quate, and would be still more so upon the introduction of compul-
sory registration in all cases.

It is felt, however, that the details and formalities of any scheme
of registration can only be satisfactorily settled by Government
officials, and the provisions of Part V. of the Bill are put forward
rather by way of suggestion than as a definitely settled scheme. It
will probably be found desirable either now or hereafter to combine
the Copyright Registration Office with the Registry of Designs and
Trade Marks, and this part of the Bill has, therefore, as far as pos-
sible, been modeled on the corresponding provisions of the Patents
Designs and Trade Marks Act, 1883.

The chief points on which the recommendations of the Royal
Commission are departed from in the present Bill are as follows : —

1. The Commissioners recommended that the universities and

libraries (other than the British Museum) which are now
entitled to receive a copy of every book published in the
United Kingdom, should be left to purchase the books they
required in the market, and that their present privilege should
be taken away. But from communications which have been
received from the librarians, it appears that they are most
anxious to retain their present privilege ; that the libraries
could not be properly supplied if it was abolished, and that
the cases in which it can cause any real hardship are very few.
The Bill, therefore, provides for the continuance of the
supply to these institutions.

2. With regard to the Fine Arts, the Commissioners were of opin-

ion that the copyright in paintings, etc. , should pass to the pur-
chaser unless specially reserved to the artist. Under the Bill,
however, the copyright will remain in the artist, unless ex-
pressly assigned to the purchaser. This, it is believed, is in
accordance with the general wish of artists, and as no replica
can be produced without the consent of the owner of the
original painting, no injury will be inflicted on purchasers,
who will moreover have the right (under section 46) of pre-

286 THE QUESTION OF COPYRIGHT.

venting unauthorized reproductions, even though they have
not (as of course it will be open to them to do) taken an
express assignment of the copyright. Practically the only
effect of the artist retaining the copyright after parting with
the picture, will be to give him a control over its reproduction
by engraving or otherwise, and this control it seems proper
that he should have.

3. The exception made in the Act, 5 and 6 Will. IV. c. 65, with

respect to lectures delivered in universities and elsewhere, is
not proposed to be re-enacted in the present Bill. What the
exact meaning and effect of that exception may be seems to
be far from clear (see the observations of the Lords in Caird
vs. Sime, L.J?. 12 App. Ca. 326), and moreover, it does not
by any means seem to follow that because a lecture is deliv-
ered in a university, or in virtue of an endowment or founda-
tion, the lecturer should be deprived of rights conferred on
all other lecturers whether they are paid for their services or
not.

4. The omission of any provisions for the introduction of a licens-

ing system into the Colonies ; and

5. The right given to a copyright owner of taking proceedings in

respect of infringements, committed before he registers his
title on payment of a penalty, have been already noticed and
explained.

London, January, 1891.

XVI.

CONVENTION CONCERNING THE CREA-
TION OF AN INTERNATIONAL UNION
FOR THE PROTECTION OF LITERARY
AND ARTISTIC WORKS.

Ratified at Berne, Switzerland, Sept. 5th, 1887.

Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, Empress of India ; His Majesty the German Emperor,
King of Prussia ; His Majesty the King of the Belgians ; Her
Majesty the Queen Regent of Spain, in the name of His Catholic
Majesty the King of Spain ; the President of the French Republic ;
the President of the Republic of Hayti ; His Majesty the King
of Italy ; the President of the Republic of Liberia ; the Federal
Council of the Swiss Confederation ; His Highness the Bey of
Tunis,

Being equally animated by the desire to protect effectively, and in
as uniform a manner as possible, the rights of authors over their
literary and artistic works,

Have resolved to conclude a convention to that effect, and have
named for their Plenipotentiaries, that is to say :

Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, Empress of India, Sir Francis Ottiwell Adams, Knight
Commander of the Most Distinguished Order of St. Michael and St.
George, Companion of the Most Honorable Order of the Bath, her
Envoy Extraordinary and Minister Plenipotentiary at Berne ; and
John Henry Gibbs Bergne, Esquire, Companion of the Most Dis-
tinguished Order of St. Michael and St. George, Director of a De-
partment in the Foreign Office at London.

His Majesty the German Emperor, King of Prussia, M. Otto von
Blilow, Privy Councilor of Legation, and Chamberlain of His
Majesty, his Envoy Extraordinary and Minister Plenipotentiary to
the Swiss Confederation.

288 THE QUESTION OF COPYRIGHT.

His Majesty the King of the Belgians, M. Maurice Delfosse, his
Envoy Extraordinary and Minister Plenipotentiary to the Swiss Con-
federation.

Her Majesty the Queen Regent of Spain, in the name of His
Catholic Majesty the King of Spain ; the Count de la Almina y
Castro, Senator, Envoy Extraordinary and Minister Plenipotentiary
to the Swiss Confederation ; M. Don Jose Villa-Amil, Chief of the
Section of Intellectual Property in the Ministry of Public Instruc-
tion, Doctor of Civil and Canon Law, Member of the Facultative
Corps of Archivists, Librarians, and Archaeologists, and of the
Academies of History, of the Fine Arts of St. Ferdinand, and of
the Academy of Sciences at Lisbon.

The President of the French Republic, M. Francois Victor-Em-
manuel Arago, Senator, Ambassador from the French Republic to the
Swiss Confederation.

The President of the Republic of Hayti, M. Louis Joseph Janvier,
Doctor of Medicine of the Faculty of Paris, Prize-man of the Faculty
of Medicine of Paris, bearing Diplomas from the School of Political
Sciences of Paris (Administrative and Diplomatic Sections), deco-
rated with the Haytian Medal of the third class.

His Majesty the King of Italy, M. Charles Emmanuel Beccaria
des Marquis dTncisa, Chevalier of the Orders of Saints Maurice and
Lazarus, and of the Crown of Italy, his Charge d'Affaires to the
Swiss Confederation.

The President of the Republic of Liberia, M. William Kcentzer,
Imperial Councilor, Consul-General, Member of the Chamber of
Commerce of Vienna.

The Federal Council of the Swiss Confederation, M. Numa Droz,
Vice-President of the Federal Council, Head of the Department of
Commerce and Agriculture ; M. Louis Ruchonnet, Federal Coun-
cilor, Chief of the Department of Justice and Police ; M. A. d'Orelli,
Professor of Law at the University of Zurich.

His Highness the Bey of Tunis, M. Louis Renault, Professor to
the Faculty of Law of Paris, and to the Free School of Political
Sciences, Chevalier of the Order of the Legion of Honor, and Chev-
alier of the Order of the Crown of Italy.

Who, having communicated to each other their respective full
powers, found in good and due form, have agreed upon the follow-
ing Articles :—

THE BERNE CONVENTION. 289

Article I.

The Contracting States are constituted into an Union for the pro-
tection of the rights of authors over their literary and artistic works.

Article II.

Authors of any of the countries of the Union, or their lawful rep-
resentatives, shall enjoy in the other countries for their works,
whether published in one of those countries or unpublished, the
rights which the respective laws do now or may hereafter grant to
natives.

The enjoyment of these rights is subject to the accomplishment of
the conditions and formalities prescribed by law in the country of
origin of the work, and cannot exceed in the other countries the term
of protection granted in the said country of origin.

The country of origin of the work is that in which the work is first
published, or if such publication takes place simultaneously in several
countries of the Union, that one of them in which the shortest term
of protection is granted by law.

For unpublished works the country to which the author belongs is
considered the country of origin of the work.

Article III.
The stipulations of the present Convention apply equally to the
publishers of literary and artistic works published in one of the
countries of the Union, but of which the authors belong to a country
which is not a party to the Union.

Article IV.
The expression "literary and artistic works" comprehends books,
pamphlets, and all other writings ; dramatic, or dramatico-musical
works, musical compositions with or without words ; works of de-
sign, painting, sculpture, and engraving ; lithographs, illustrations,
geographical charts ; plans, sketches, and plastic works relative to
geography, topography, architecture, or science in general ; in fact,
every production whatsoever in the literary, scientific, or artistic do-
main which can be published by any mode of impression or reproduc-
tion.

Article V.

Authors of any of the countries of the Union, or their lawful rep-
resentatives, shall enjoy in the other countries the exclusive right of
19

290 THE QUESTION OF COPYRIGHT.

making or authorizing the translation of their works until the expira-
tion of ten years from the publication of the original work in one of
the countries of the Union.

For works published in incomplete parts (" livraisons ") the period
of ten years commences from the date of publication of the last part
of the original work.

For works composed of several volumes published at intervals, as
well as for bulletins or collections (" cahiers") published by literary
or scientific Societies, or by private persons, each volume, bulletin,
or collection is, with regard to the period of ten years, considered as
a separate work.

In the cases provided for by the present Article, and for the calcu-
lation of the period of protection, the 31st December of the year in
which the work was published is admitted as the date of publication.

Article VI.

Authorized translations are protected as original works. They
consequently enjoy the protection stipulated in Articles II. and III.
as regards their unauthorized reproduction in the countries of the
Union.

It is understood that, in the case of a work for which the tranikt-
ing right has fallen into the public domain, the translator cannot
oppose the translation of the same work by other writers.

Article VII.

Articles from newspapers or periodicals published in any of the
countries of the Union may be reproduced in original or in trans-
lation in the other countries of the Union, unless the authors or
publishers have expressly forbidden it. For periodicals it is suffi-
cient if the prohibition is made in a general manner at the beginning
of each number of the periodical.

This prohibition cannot in any case apply to articles of political
discussion, or to the reproduction of news of the day or current topics.

Article VIII.

As regards the liberty of extracting portions from literary or artistic
works for use in publications destined for educational or scientific
purposes, or for chrestomathies, the matter is to be decided by the
legislation of the different countries of the Union, or by special
arrangements existing or to be concluded between them.

THE BERNE CONVENTION. 291

Article IX.

The stipulations of Article II. apply to the public representation of
dramatic or dramatico-musical works, whether such works be pub-
lished or not.

Authors of dramatic or dramatico-musical works, or their lawful
representatives, are, during the existence of their exclusive right of
translation, equally protected against the unauthorized public repre-
sentation of translations of their works.

The stipulations of Article II. apply equally to the public perform-
ance of unpublished musical works, or of published works in which
the author has expressly declared on the title-page or commencement
of the work that he forbids the public performance.

Article X.

Unauthorized indirect appropriations of a literary or artistic work,
of various kinds, such as adaptations, arrangements of music, etc.,
are specially included amongst the illicit reproductions to which the
present Convention applies, when they are only the reproduction of
a particular work, in the same form, or in another form, with non-
essential alterations, additions, or abridgments, so made as not to
confer the character of a new original work.

It is agreed that, in the application of the present Article, the
Tribunals of the various countries of the Union will, if there is occa-
sion, conform themselves to the provisions of their respective laws.

Article XL

In order that the authors of works protected by the present Con-
vention shall, in the absence of proof to the contrary, be considered
as such, and be consequently admitted to institute proceedings
against pirates before the Courts of the various countries of the
Union, it will be sufficient that their name be indicated on the work
in the accustomed manner.

For anonymous or pseudonymous works, the publisher whose
name is indicated on the work is entitled to protect the rights
belonging to the author. He is, without other proof, reputed the
lawful representative of the anonymous or pseudonymous author.

It is, nevertheless, agreed that the Tribunals may, if necessary,
require the production of a certificate from the competent authority
to the effect that the formalities prescribed by law in the country of
origin have been accomplished, as contemplated in Article II,

2Q2 THE QUESTION OF COPYRIGHT.

Article XII.

Pirated works may be seized on importation into those countries
of the Union where the original work enjoys legal protection.

The seizure shall take place conformably to the domestic law of
each State.

Article XIII.

It is understood that the provisions of the present Convention
cannot in any way derogate from the right belonging to the Govern-
ment of each country of the Union to permit, to control, or to pro-
hibit, by measures of domestic legislation or police, the circulation,
representation, or exhibition of any works or productions in regard
to which the competent authority may find it necessary to exercise
that right.

Article XIV.

Under the reserves and conditions to be determined by common
agreement,1 the present Convention applies to all works which at
the moment of its coming into force have not yet fallen into the
public domain in the country of origin.

Article XV.

It is understood that the Governments of the countries of the
Union reserve to themselves respectively the right to enter into
separate and particular arrangements between each other, provided
always that such arrangements confer upon authors or their lawful
representatives more extended rights than those granted by the
Union, or embody other stipulations not contrary to the present
Convention.

Article XVI.

An international office is established, under the name of "Office
of the International Union for the Protection of Literary and
Artistic Works."

This office, of which the expenses will be borne by the Adminis-
trations of all the countries of the Union, is placed under the high
authority of the Superior Administration of the Swiss Confedera-

1 See paragraph 4 of Final Protocol.

THE BERNE CONVENTION. 293

tion, and works under its direction. The functions of this Office
are determined by common accord between the countries of the
Union.

Article XVII.

The present Convention may be submitted to revisions in order to
introduce therein amendments calculated to perfect the system of
the Union.

Questions of this kind, as well as those which are of interest to
the Union in other respects, will be considered in Conferences to be
held successively in the countries of the Union by Delegates of the
said countries.

It is understood that no alteration in the present Convention shall
be binding on the Union except by the unanimous consent of the
countries composing it.

Article XVIII.

Countries which have not become parties to the present Conven-
tion, and which grant by their domestic law the protection of rights
secured by this Convention, shall be admitted to accede thereto on
request to that effect.

Such accession shall be notified in writing to the Government of
the Swiss Confederation, which will communicate it to all the other
countries of the Union.

Such accession shall imply full adhesion to all the clauses and
admission to all the advantages provided by the present Convention.

Article XIX.

Countries acceding to the present Convention shall also have the
right to accede thereto at any time for their Colonies or foreign
possessions.

They may do this either by a general declaration comprehending
all their Colonies or possessions within the accession, or by specially
naming those comprised therein, or by simply indicating those which
are excluded.

Article XX.

The present Convention shall be put in force three months after
the exchange of the ratifications, and shall remain in effect for an

294 THE QUESTION OF COPYRIGHT.

indefinite period until the termination of a year from the day on
which it may have been denounced.

Such denunciation shall be made to the Government authorized to
receive accessions, and shall only be effective as regards the country
making it, the Convention remaining in full force and effect for the
other countries of the Union.

Article XXI.

The present Convention shall be ratified, and the ratifications ex-
changed at Berne, within the space of one year at the latest.

In witness whereof, the respective Plenipotentiaries have signed
the same, and have affixed thereto the seal of their arms.

Done at Berne, the 9th day of September, 1886.

F. O. ADAMS.

J. H. G. BERGNE.

OTTO von BULOW.

MAURICE DELFOSSE.

COMTE DE LA ALMINA Y CASTRO.

JOSE VILLA-AMIL.

EMMANUEL ARAGO.

LOUIS-JOSEPH JANVIER.

E. DI BECCARIA.

KOENTZER.

DROZ.

L. RUCHONNET.

A. D'ORELLI.

L. RENAULT.

Additional Article.

The Plenipotentiaries assembled to sign the Convention concern-
ing the creation of an International Union for the protection of
literary and artistic works have agreed upon the following Addi-
tional Article, which shall be ratified together with the Convention
to which it relates : —

The Convention concluded this day in nowise affects the main-
tenance of existing Conventions between the Contracting States,
provided always that such Conventions confer on authors, or their
lawful representatives, rights more extended than those secured by

THE BERNE CONVENTION. 295

the Union, or contain other stipulations which are not contrary to
the said Convention.

In witness whereof, the respective Plenipotentiaries have signed
the present Additional Article.

Done at Berne, the 9th day of September, 1886.

(Signed) F. O. ADAMS.

J. H. G. BERGNE.

OTTO von BULOW.

MAURICE DELFOSSE.

ALMINA.

VILLA-AMIL.

EMMANUEL ARAGO.

LOUIS-JOSEPH JANVIER.

E. DI BECCARIA.

KCENTZER.

DROZ.

L. RUCHONNET.

A. D'ORELLI.

L. RENAULT.

Final Protocol.

In proceeding to the signature of the Convention concluded this
day, the undersigned Plenipotentiaries have declared and stipulated
as follows :

1. As regards Article IV., it is agreed that those countries of
the Union where the character of artistic works is not refused to
photographs, engage to admit them to the benefits of the Convention
concluded to-day, from the date of its coming into effect. They
are, however, not bound to protect the authors of such works
further than is permitted by their own legislation, except in the case
of international engagements already existing, or which may here-
after be entered into by them.

It is understood that an authorized photograph of a protected
work of art shall enjoy legal protection in all the countries of the
Union, as contemplated by the said Convention, for the same period
as the principal right of reproduction of the work itself subsists,
and within the limits of private arrangements between those who
have legal rights.

2. As regards Article IX., it is agreed that those countries of the

296 THE QUESTION OF COPYRIGHT.

Union whose legislation implicitly includes choregraphic works
amongst dramatico-musical works, expressly admit the former works
to the benefits of the Convention concluded this day.

It is, however, understood that questions which may arise on the
application of this clause shall rest within the competence of the
respective Tribunals to decide.

3. It is understood that the manufacture and sale of instruments
for the mechanical reproduction of musical airs which are copy-
right, shall not be considered as constituting an infringement of
musical copyright.

4. The common agreement alluded to in Article XIV. of the Con-
vention is established as follows :

The application of the Convention to works which have not fallen
into the public domain at the time when it comes into force, shall
operate according to the stipulations on this head which may be
contained in special Conventions either existing or to be concluded.

In the absence of such stipulations between any countries of the
Union, the respective countries shall regulate, each for itself by its
domestic legislation, the manner in which the principle contained in
Article XIV. is to be applied.

5. The organization of the International Office established in
virtue of Article XVI. of the Convention shall be fixed by a Regu-
lation which will be drawn up by the Government of the Swiss
Confederation.

The official language of the International Office will be French.

The International Office will collect all kinds of information
relative to the protection of the rights of authors over their literary
and artistic works. It will arrange and publish such information.
It will study questions of general utility likely to be of interest to
the Union, and, by the aid of documents placed at its disposal by
the different Administrations, will edit a periodical publication in
the French language treating questions which concern the Union.
The Governments of the countries of the Union reserve to them-
selves the faculty of authorizing, by common accord, the publication
by the Office of an edition in one or more other languages if experi-
ence should show this to be requisite.

The International Office will always hold itself at the disposal of
members of the Union, with the view to furnish them with any
special information they may require relative to the protection of
literary and artistic works.

THE BERNE CONVENTION.

297

The Administration of the country where a Conference is about
to be held, will prepare the programme of the Conference with the
assistance of the International Office.

The Director of the International Office will attend the sittings
of the Conferences, and will take part in the discussions without a
deliberative voice. He will make an annual Report on his admin-
istration, which shall be communicated to all the members of the
Union.

The expenses of the Office of the International Union shall be
shared by the Contracting States. Unless a fresh arrangement be
made, they cannot exceed a sum of 60,000 fr. a year. This sum
may be increased by the decision of one of the Conferences pro-
vided for in Article XVII.

The share of the total expense to be paid by each country shall be
determined by the division of the contracting and acceding States
into six classes, each of which shall contribute in the proportion of a
certain number of units, viz. : —

First Class

Second

Third

Fourth

Fifth

Sixth

25 units.
20 "
15 "
10

5 "
3 "

These co-efficients will be multiplied by the number of States of
each class, and the total product thus obtained will give the number
of units by which the total expense is to be divided. The quotient
will give the amount of the unity of expense.

Each State will declare at the time of its accession, in which of the
said classes it desires to be placed.

The Swiss Administration will prepare the Budget of the Office,
superintend its expenditure, make the necessary advances, and draw
up the annual account, which shall be communicated to all the other
Administrations.

6. The next Conference shall be held at Paris, between four and
six years from the date of the coming into force of the Convention.

The French Government will fix the date within these limits after
having consulted the International Office.

7. It is agreed that, as regards the exchange of ratifications con-

298 THE QUESTION OF COPYRIGHT.

templated in Article XXI., each Contracting Party shall give a single
instrument, which shall be deposited, with those of the other States,
in the Government archives of the Swiss Confederation. Each party
shall receive in exchange a copy of the proces-verbal of the exchange
of ratifications, signed by the Plenipotentiaries present.

The present Final Protocol, which shall be ratified with the Con-
vention concluded this day, shall be considered as forming an integral
part of the said Convention, and shall have the same force, effect, and
duration.

In witness whereof the respective Plenipotentiaries have signed the
same.

Done at Berne, the 9th day of September, 1886.

(Signed) F. O. ADAMS.

J. H. G. BERGNE.

OTTO von BULOW.

MAURICE DELFOSSE.

ALMINA.

VILLA-AMIL.

EMMANUEL ARAGO.

LOUIS-JOSEPH JANVIER.

E. DI BECCARIA.

KGENTZER.

DROZ.

L. RUCHONNET.

A. D'ORELLI.

L. RENAULT.

Proces-verbal of Signature.

The undersigned Plenipotentiaries, assembled this day to proceed
with the signature of the Convention with reference to the creation
of an International Union for the protection of literary and artistic
works, have exchanged the following declarations : — ■

1. With reference to the accession of the Colonies or foreign pos-
sessions provided for by Article XIX. of the Convention :

THE BERNE CONVENTION. 299

The Plenipotentiaries of His Catholic Majesty the King of Spain
reserve to the Government the power of making known His Ma-
jesty's decision at the time of the exchange of ratifications.

The Plenipotentiary of the French Republic states that the
accession of his country carries with it that of all the French Colo-
nies.

The Plenipotentiaries of Her Britannic Majesty state that the ac-
cession of Great Britain to the Convention for the protection of
literary and artistic works comprises the United Kingdom of Great
Britain and Ireland, and all the Colonies and foreign possessions of
Her Britannic Majesty.

At the same time they reserve to the Government of Her Britannic
Majesty the power of announcing at any time the separate denuncia-
tion of the Convention by one or several of the following Colonies or
possessions, in the manner provided for by Article XX. of the Con-
vention, namely : —

India, the Dominion of Canada, Newfoundland, the Cape, Natal,
New South Wales, Victoria, Queensland, Tasmania, South Aus-
tralia, Western Australia, and New Zealand.

2. With respect to the classification of the countries of the Union
having regard to their contributory part to the expenses of the
International Bureau (No. 5 of the Final Protocol) :

The Plenipotentiaries declare that their respective countries
should be ranked in the following classes, namely : —

Germany in the first class. Hayti in the fifth class.

Belgium in the third class. Italy in the first class.

Spain in the second class. Switzerland in the third class.

France in the first class. Tunis in the sixth class.

Great Britain in the first class.

The Plenipotentiary of the Republic of Liberia states that the
powers which he has received from his Government authorize him
to sign the Convention, but that he has not received instructions as
to the class in which his country proposes to place itself with respect
to the contribution to the expenses of the International Bureau.
He therefore reserves that question to be determined by his Gov-
ernment, which will make known its intention on the exchange of
ratifications.

300 THE QUESTION OF COPYRIGHT.

In witness whereof, the respective Plenipotentiaries have signed
the present proch-verbal.

Done at Berne, the 9th day of September, 1886.

(Signed) For Great Britain . . F. O. ADAMS.

J. H. G. BERGNE.
For Germany . . . . OTTO von BULOW.
For Belgium . . . . MAURICE DELFOSSE.
For Spain ALMINA.

VILLA-AMIL.
For France . . . . EMMANUEL ARAGO.

For Hayti LOUIS-JOSEPH JANVIER.

For Italy E. DI BECCARIA.

For Liberia . . . . KCENTZER.
For Switzerland . . DROZ.

L. RUCHONNET.

A. D'ORELLI.
For Tunis L. RENAULT.

Proch-verbal recording Deposit of Ratifications.

In accordance with the stipulations of Article XXL, paragraph I,
of the Convention for the creation of an International Union for
the protection of literary and artistic works, concluded at Berne on
9th September, 1886, and in consequence of the invitation addressed
to that effect by the Swiss Federal Council to the Governments of
the High Contracting Parties, the Undersigned assembled this day
in the Federal Palace at Berne for the purpose of examining and
depositing the ratifications of : —

Her Majesty the Queen of Great Britain and Ireland, Empress of
India,

His Majesty the Emperor of Germany, King of Prussia,

His Majesty the King of the Belgians,

Her Majesty the Queen Regent of Spain, in the name of His
Catholic Majesty the King of Spain,

The President of the French Republic,

The President of the Republic of Hayti,

His Majesty the King of Italy,

THE BERNE CONVENTION. 301

The Council of the Swiss Confederation,
His Highness the Bey of Tunis,

to the said International Convention, followed by an Additional
Article and Final Protocol.

The instruments of these acts of ratification having been pro-
duced and found in good and due form, they have been delivered
into the hands of the President of the Swiss Confederation, to be
deposited in the archives of the Government of that country, in
accordance with clause No. 7 of the Final Protocol of the Inter-
national Convention.

In witness whereof the Undersigned have drawn up the present
proces-verbal, to which they have affixed their signatures and the
seals of their arms.

Done at Berne, the 5th September, 1S87, in nine copies, one of
which shall be deposited in the archives of the Swiss Confederation
with the instruments of ratification.

For Great Britain . . F. O. ADAMS.

For Germany
For Belgium
For Spain . .
For France
For Hayti . .
For Italy . .

ALFRED von BULOW.
HENRY LOUMYER.
COMTE DE LA ALMINA.
EMMANUEL ARAGO.
LOUIS-JOSEPH JANVIER.
FE.

For Switzerland . . DROZ.

For Tunis H. MARCHAND.

Protocol.

On proceeding to the signature of the proces-verbal recording the
deposit of the acts of ratification given by the High Parties Signatory
to the Convention of the gth September, 18S6, for the creation of an
International Union for the protection of literary and artistic works,
the Minister of Spain renewed, in the name of his Government, the
declaration recorded in the proces-verbal of the Conference of the
9th September, 1886, according to which the accession of Spain to
the Convention includes that of all the territories dependent upon
the Spanish Crown.

302 THE QUESTION OF COPYRIGHT.

The Undersigned have taken note of this declaration.
In witness whereof they have signed the present Protocol, done at
Berne, in nine copies, the 5th September, 1887.

For Great Britain . . F. O. ADAMS.

For Germany . . . . ALFRED VON BULOW.

For Belgium .. .. HENRY LOUMYER.

For Spain COMTE DE LA ALMINA.

For France .. .. EMMANUEL ARAGO.

ForHayti LOUIS-JOSEPH JANVIER.

For Italy FE.

For Switzerland . . DROZ.

For Tunis H. MARCHAND.

THE INTERNATIONAL COPYRIGHT ACT, 1 886.
[49 & 50 Vict., c. 33-]

Arrangement of Sections.

Section.

1. Short titles and construction .

2. Amendment as to extent and effect of order under International Copy-

right Acts.

3. Simultaneous publication.

4. Modification of certain provisions of International Copyright Acts.

5. Restriction on translation.

6. Application of Act to existing works.

7. Evidence of foreign copyright.

8. Application of Copyright Acts to Colonies.

9. Application of International Copyright Acts to Colonies.

10. Making of Orders ia Council.

11. Definitions.

12. Repeal of Acts.
Schedules.

An act to amend the Law respecting International and Colonial
Copyright. [25th June, 1886.]

Whereas, by the International Copyright Acts Her Majesty is
authorized by Order in Council to direct that as regards literary and
artistic works first published in a foreign country the author shall
have copyright therein during the period specified in the order, not
exceeding the period during which authors of the like works first
published in the United Kingdom have copyright :

THE BRITISH ACT OF 1 886. 303

And whereas, at an international conference held at Berne in the
month of September one thousand eight hundred and eighty-five a
draft of a convention was agreed to for giving to authors of literary
and artistic works first published in one of the countries parties to
the convention copyright in such works throughout the other coun-
tries parties to the convention ;

And whereas, without the authority of Parliament such convention
cannot be carried into effect in Her Majesty's dominions and conse-
quently Her Majesty cannot become a party thereto, and it is expe-
dient to enable Her Majesty to accede to the convention :

Be it therefore enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assembled, and by
the authority of the same, as follows :

1. — (1.) This Act may be cited as the International Copyright
Act, 1886.

(2.) The Acts specified in the first part of the First Schedule to
this Act are in this Act referred to and may be cited by the short
titles in that schedule mentioned, and those Acts, together with the
enactment specified in the second part of the said schedule, are in
this Act collectively referred to as the International Copyright Acts.

The Acts specified in the Second Schedule to this Act may be
cited by the short titles in that schedule mentioned, and those Acts
are in this Act referred to, and may be cited collectively as the
Copyright Acts.

(3.) This Act and the International Copyright Acts shall be con-
strued together, and may be cited together as the International
Copyright Acts, 1844 to 1886.

2. The following provisions shall apply to an Order in Council
under the International Copyright Acts : —

(1.) The order may extend to all the several foreign countries
named or described therein :

(2.) The order may exclude or limit the rights conferred by the
International Copyright Acts in the case of authors who are not
subjects or citizens of the foreign countries named or described in
that or any other order, and if the order contains such limitation
and the author of a literary or artistic work first produced in one of
those foreign countries is not a British subject, nor a subject or citi-
zen of any of the foreign countries so named or described, the pub-
lisher of such work, unless the order otherwise provides, shall, for

304 THE QUESTION OF COPYRIGHT.

the purpose of an,y legal proceedings in the United Kingdom for
protecting any copyright in such work, be deemed to be entitled to
such copyright as if he were the author, but this enactment shall not
prejudice the rights of such author and publisher as between them-
selves :

(3.) The International Copyright Acts and an order made there-
under shall not confer on any person any greater right or longer
term of copyright in any work than that enjoyed in the foreign
country in which such work was first produced.

3. — (1.) An Order in Council under the International Copyright
Acts may provide for determining the country in which a literary or
artistic work, first produced simultaneously in two or more countries,
is to be deemed, for the purpose of copyright, to have been first
produced, and for the purposes of this section "country" means
the United Kingdom and a country to which an order under the said
Acts applies.

(2.) Where a work produced simultaneously in the United King-
dom, and in some foreign country or countries, is by virtue of an
Order in Council under the International Copyright Acts deemed for
the purpose of copyright to be first produced in one of the said
foreign countries, and not in the United Kingdom, the copyright in
the United Kingdom shall be such only as exists by virtue of pro-
duction in the said foreign country, and shall not be such as would
have been acquired if the work had been first produced in the
United Kingdom.

4. — (1.) Where an order respecting any foreign country is made
under the International Copyright Acts the provisions of those Acts
with respect to the registry and delivery of copies of works shall not
apply to works produced in such country except so far as provided
by the order.

(2.) Before making an Order in Council under the International
Copyright Acts in respect of any foreign country, Her Majesty in
Council shall be satisfied that that foreign country has made such
provisions (if any) as it appears to Her Majesty expedient to require
for the protection of authors of works first produced in the United
Kingdom.

5. — (1.) Where a work being a book or dramatic piece is first pro-
duced in a foreign country to which an Order in Council under the
International Copyright Acts applies, the author or publisher, as
the case may be, shall, unless otherwise directed by the Order, have

THE BRITISH ACT OF 1 886. 305

the same right of preventing the production in and importation into
the United Kingdom of any translation not authorized by him of the
said work as he has of preventing the production and importation of
the original work.

(2.) Provided that if after the expiration of ten years, or any other
term prescribed by the order, next after the end of the year in which
the work, or in the case of a book published in numbers each num-
ber of the book, was first produced, an authorized translation in the
English language of such work or number has not been produced,
the said right to prevent the production in and importation into the
United Kingdom of an unauthorized translation of such work shall
cease.

(3.) The law relating to copyright, including this Act, shall apply
to a lawfully produced translation of a work in like manner as if it
were an original work.

(4.) Such of the provisions of the International Copyright Act,
1852, relating to translations, as are unrepealed by this Act shall
apply in like manner as if they were re-enacted in this section.

6. Where an Order in Council is made under the International
Copyright Acts with respect to any foreign country, the author and
publisher of any literary or artistic work first produced before the
date at which such order comes into operation shall be entitled to
the same rights and remedies as if the said Acts and this Act and
the said order had applied to the said foreign country at the date of
the said production : Provided that where any person has before the
date of the publication of an Order in Council lawfully produced
any work in the United Kingdom, nothing in this section shall
diminish or prejudice any rights or interests arising from or in con-
nection with such production which are subsisting and valuable at
the said date.

7. Where it is necessary to prove the existence or proprietorship
of the copyright of any work first produced in a foreign country to
which an Order in Council under the International Copyright Acts
applies, an extract from a register, or a certificate, or other docu-
ment stating the existence of the copyright, or the person who is the
proprietor of such copyright, or is for the purpose of any legal pro-
ceedings in the United Kingdom deemed to be entitled to such copy-
right, if authenticated by the official seal of a Minister of State of
the said foreign country, or by the official seal or the signature of a
British diplomatic or consular officer acting in such country, shall be

306 THE QUESTION OF COPYRIGHT.

admissible as evidence of the facts named therein, and all courts
shall take judicial notice of every such official seal and signature as
is in this section mentioned, and shall admit in evidence, without
proof, the documents authenticated by it.

8. — (i.) The Copyright Acts shall, subject to the provisions of this
Act, apply to a literary or artistic work first produced in a British
possession in like manner as they apply to a work first produced in
the United Kingdom :

Provided that —

(a) the enactments respecting the registry of the copyright in such
work shall not apply if the law of such possession provides for
the registration of such copyright ; and

(6) where such work is a book the delivery to any persons or body
of persons of a copy of any such work shall not be required.

(2.) Where a register of copyright in books is kept under the au-
thority of the government of a British possession, an extract from
that register purporting to be certified as a true copy by the officer
keeping it, and authenticated by the public seal of the British pos-
session, or by the official seal or the signature of the governor of a
British possession, or of a colonial secretary, or of some secretary or
minister administering a department of the government of a British
possession, shall be admissible in evidence of the contents of that
register, and all courts shall take judicial notice of every such seal
and signature, and shall admit in evidence, without further proof,
all documents authenticated by it.

(3.) Where before the passing of this Act an Act or ordinance has
been passed in any British possession respecting copyright in any
literary or artistic works, Her Majesty in Council may make an Order
modifying the Copyright Acts and this Act, so far as they apply to
such British possession, and to literary and artistic works first pro-
duced therein, in such manner as to Her Majesty in Council seems
expedient.

(4.) Nothing in the copyright Acts or this Act shall prevent the
passing in a British possession of any Act or ordinance respecting
the copyright within the limits of such possession of works first pro-
duced in that possession.

9. Where it appears to Her Majesty expedient that an Order in
Council under the International Copyright Acts made after the pass-
ing of this Act as respects any foreign country, should not apply
to any British possession, it shall be lawful for Her Majesty by the

THE BRITISH ACT OF 1 886. 3°7

same or any other Order in Council to declare that such Order and fc
the International Copyright Acts and this Act shall not, and the
same shall not, apply to such British possession, except so far as is
necessary for preventing any prejudice to any rights acquired pre-
viously to the date of such Order ; and the expressions in the said
Acts relating to Her Majesty's dominions shall be construed accord-
ingly ; but save as provided by such declaration the said Acts and
this Act shall apply to every British possession as if it were part of
the United Kingdom.

10 — (i.) It shall be lawful for Her Majesty from time to time to
make Orders in Council for the purpose of the International Copy-
right Acts and this Act, for revoking or altering any Order in Council
previously made in pursuance of the said Acts, or any of them.

(2.) Any such Order in Council shall not affect prejudicially any
rights acquired or accrued at the date of such Order coming into
operation, and shall provide for the protection of such rights.
II. In this Act, unless the context otherwise requires —
The expression "literary and artistic work" means every book,
print, lithograph, article of sculpture, dramatic piece, musical com-
position, painting, drawing, photograph, and other work of literature
and art to which the Copyright Acts or the International Copyright
Acts, as the case requires, extend.

The expression " author " means the author, inventor, designer,
engraver, or maker of any literary or artistic work, and includes any
person claiming through the author ; and in the case of a posthu-
mous work means the proprietor of the manuscript of such work and
any person claiming through him ; and in the case of an encyclopae-
dia, review, magazine, periodical work, or work published in a series
of books or parts, includes the proprietor, projector, publisher, or
conductor.

The expressions "performed" and "performance" and similar
words include representation and similar words.

The expression " produced " means, as the case requires, published
or made, or, performed or represented, and the expression "pro-
duction " is to be construed accordingly.

The expression " bookpublished in numbers " includes any review,
magazine, periodical work, work published in a series of books or
parts, transactions of a society or body, and other books of which
different volumes or parts are published at different times.

The expression " treaty " includes any convention or arrangement.

308

THE QUESTION OF COPYRIGHT.

The expression "British possession " includes any part of Her
Majesty's dominions exclusive of the United Kingdom ; and where
parts of such dominions are under both a central and a local legis-
lature, all parts under one central legislature are for the purposes of
this definition deemed to be one British possession.

12. The Acts specified in the Third Schedule to this Act are
hereby repealed as from the passing of this Act to the extent in the
third column of that schedule mentioned :
Provided as follows:

(a.) Where an Order in Council has been made before the passing
of this Act under the said Acts as respects any foreign country
the enactments hereby repealed shall continue in full force as
respects that country until the said Order is revoked.
{b.) The said repeal and revocation shall not prejudice any rights
acquired previously to such repeal or revocation, and such
rights shall continue and may be enforced in like manner
as if the said repeal or revocation had not been enacted or
made.

FIRST SCHEDULE.
International Copyright Acts.

Part I.

Session and Chapter

7 & 8 Vict. c. 12

iS & 16 Vict. c. 12

39 Vict. c. 12

Title.

An Act to amend the law relating to
International Copyright.

An Act to enable Her Majesty to
carry into effect a convention with
France on the subject of copyright,
to extend and explain the Interna-
tional Copyright Acts, and to ex-
plain the Acts relating to copyright
in engravings.

An Act to amend the law relating to
International Copyright.

Short Title.

The International
Copyright Act,

1844.

The International
Copyright Act,

The International
Copyright Act.
1875-

THE BRITISH ACT OF 1 886.

309

FIRST SCHEDULE.
Part II.

Session and Chapter

Title.

Enactment referred
to.

25 & 26 Vict. c. 68

An Act for amending the law relat-
ing to copyright in works of the
fine arts, and for repressing the
commission of fraud in the produc-
tion and sale of such works.

Section twelve.

SECOND SCHEDULE.
Copyright Acts.

8 Geo. 2. c. 13

7 Geo. 3. c. 38

15 Geo. 3. c. 53

An Act for the encouragement of
the arts of designing, engraving,
and etching, historical, and other
prints by vesting the properties
thereof in the inventors and en-
gravers during the time therein-
mentioned.

An Act to amend and render more
effectual an Act made in the
eighth year of the reign of King
George the Second, for encourage-
ment of the arts of designing, en-
graving, and etching, historical
and other prints, and for vesting
in and securing to Jane Hogarth,
widow, the property in certain
prints.

An Act for enabling the two Uni-
versities in England, the four
Universities in Scotland, and the
several Colleges of Eton, West-
minster, and Winchester, to hold
in perpetuity their copyright in
books given or bequeathed to the
said universities and colleges for
the advancement of useful learn-
ing and other purposes of educa-
tion ; and for amending so much
of an Act of the eighth year of
the reign of Queen Anne, as re-
lates to the delivery of books to
the warehouse-keeper of the Sta-
tioners' Company for the use of
the several libraries therein men-
tioned.

The Engraving
Copyright Act,
1734-

The Engraving
Copyright Act,
1766.

The Copyright Act,
1775-

3IO THE QUESTION OF COPYRIGHT.

SECOND SCHEDULE— Continued.

Session and Chapter

17 Geo. 3. c. 57

54 Geo. 3. c. 56

3 Will. 4. c. 15

5 & 6 Will. 4. c. 65

6& 7 Will. 4. c. 69

6&7 Will. 4. c. no

S & 6 Vict. c. 45

10 & 11 Vict. c. 95

25 & 26 Vict. c.

An Act for more effectually securing
the property of prints to inventors
and engravers by enabling them to
sue for and recover penalties in
certain cases.

An Act to amend and render more
effectual an Act of His present
Majesty for encouraging the art
of making new models and casts
of busts and other things therein
mentioned, and for giving further
encouragement to such arts.

An Act to amend the laws relating
to Dramatic Literary Property.

An Act for preventing the publica-
tion of Lectures without consent.

An Act to extend the protection of
copyright in prints and engrav-
ings to Ireland.

An Act to repeal so much of an Act
of the fifty-fourth year of King
George the Third, respecting copy-
rights, as requires the delivery of
a copy of every published book to
the libraries of Sion College, the
four Universities of Scotland, and
of the King's Inns in Dublin.

An Act to amend the law of copy-
right.

An Act to amend the law relating to
the protection in the Colonies of
works entitled to copyright in the
United Kingdom.

An Act for amending the law relat-
ing to copyright in works of the
fine arts, and for repressing the
commission of fraud in the pro-
duction and sale of such works.

Short Title.

The Prints Copy-
right Act, 1777.

The Sculpture
Copyright Act,

The Dramatic Copy-
right Act, 1833.

The Lectures Copy-
right Act, 1835.

The Prints and En-
gravings Copy-
right Act, 1836.

The Copyright
Act, 1836.

The Copyright
Act, 1842.

The Colonial Copy-
right Act, 1847.

The Fine Arts
Copyright Act,
1862.

THE BRITISH ACT OF 1 886.

311

THIRD SCHEDULE.
Acts Repealed.

Session and Chapter

7& 8 Vict. c. 12

15 & 16 Vict. c. 12

25 & 26 Vict. c. 68

Title.

An Act to amend the law relating
to international copyright.

An Act to enable Her Majesty to
carry into effect a convention with
France on the subject of copy-
right, to extend and explain the
International Copyright Acts, and
to explain the Acts relating to
copyright engravings.

An Act for amending the law relat-
ing to copyright in works of the
fine arts, and for repressing the
commission of fraud in the produc-
tion and sale of such works.

Extent of Repeal.

Sections fourteen,
seventeen, and
eighteen.

Sections one to
five, both inclu-
sive, and sections
eight and eleven.

So much of section
twelve as incor-
porates any en-
actment repealed
by this Act.

ORDER IN COUNCIL.

At the Court at Windsor, the 28th day of November, 1887.
Present,
The QUEEN'S Most Excellent Majesty,
Lord President,
Lord Stanley of Preston,
Secretary Sir Henry. Holland, Bart.

WHEREAS the Convention of which an English translation is set
out in the First Schedule to this Order has been concluded between
her Majesty the Queen of the United Kingdom of Great Britain
and Ireland and the foreign countries named in this Order, with
respect to the protection to be given by way of copyright to the
authors of literary and artistic works :

And whereas the ratifications of the said Convention were ex-
changed on the fifth day of September one thousand eight hundred
and eighty-seven, between Her Majesty the Queen and the Govern-
ments of the foreign countries following, that is to say :

Belgium ; France ; Germany ; Hayti ; Italy ; Spain ; Switzer-
land ; Tunis :

312 THE QUESTION OF COPYRIGHT.

And whereas Her Majesty in Council is satisfied that the foreign
countries named in this Order have made such provisions as it
appears to Her Majesty expedient to require for the protection of
authors of works first produced in Her Majesty's dominions :

Now, therefore, Her Majesty, by and with the advice of her Privy
Council, and by virtue of the authority committed to Her by the
International Copyright Acts, 1844 to 1886, doth order ; and it is
hereby ordered, as follows :

1. The Convention as set forth in the First Schedule to this
Order, shall, as from the commencement of this Order, have full
effect throughout Her Majesty's dominions, and all persons are en-
joined to observe the same.

2. This Order shall extend to the foreign countries following,
that is to say : Belgium ; France ; Germany ; Hayti ; Italy ; Spain ;
Switzerland ; Tunis ; and the above countries are in this Order
referred to as the foreign countries of the Copyright Union, and
those foreign countries, together with Her Majesty's dominions, are
in this Order referred to as the countries of the Copyright Union.

3. The author of a literary or artistic work which, on or after the
commencement of this Order, is first produced in one of the foreign
countries of the Copyright Union shall, subject as in this Order and
in the International Copyright Acts, 1844 to 1886, mentioned, have
as respects that work throughout Her Majesty's dominions, the same
right of copyright, including any right capable of being conferred
by an Order in Council under section two or section five of the
International Copyright Act, 1844, or under any other enactment,
as if the work had been first produced in the United Kingdom, and
shall have such right during the same period ;

Provided, that the author of a literary or artistic work shall not
have any greater right or longer term of copyright therein, than that
which he enjoys in the country in which the work is first produced.

The author of any literary or artistic work first produced before
the commencement of this Order shall have the rights and remedies
to which he is entitled under section six of the International Copy-
right Act, 1886.

4. The rights conferred by the International Copyright Acts, 1844
to 1886, shall, in the case of a literary or artistic work first produced
in one of the foreign countries of the Copyright Union by an
author who is not a subject or citizen of any of the said foreign
countries, be limited as follows, that is to say, the author shall not

THE BRITISH ACT OF 1 886. 313

be entitled to take legal proceedings in Her Majesty's dominions for
protecting any copyright in such work, but the publisher of such
work shall, for the purpose of any legal proceedings in Her
Majesty's dominions for protecting any copyright in such work, be
deemed to be entitled to such copyright as if he were the author,
but without prejudice to the rights of such author and publisher as
between themselves.

5. A literary or artistic work first produced simultaneously in two
or more countries of the Copyright Union shall be deemed for the
purpose of copyright to have been first produced in that one of those
countries in which the term of copyright in the work is shortest.

6. Section six of the International Copyright Act, 1852, shall not
apply to any dramatic piece to which protection is extended by virtue
of this Order.

7. The Orders mentioned in the Second Schedule to this Order are
hereby revoked ;

Provided that neither such revocation, nor anything else in this
Order, shall prejudicially affect any right acquired or accrued before
the commencement of this Order, by virtue of any Order hereby re-
voked, and any person entitled to such right shall continue entitled
thereto, and to the remedies for the same, in like manner as if this
Order had not been made.

8. This Order shall be construed as if it formed part of the Inter-
national Copyright Act, 1886.

9. This Order shall come into operation on the sixth day of Decem-
ber, one thousand eight hundred and eighty-seven, which day is in
this Order referred to as the commencement of this Order.

And the Lords Commissioners of Her Majesty's Treasury are to
give the necessary orders herein accordingly.

C. L. Peel.

XVII.

SUMMARY OF THE REPORT OF THE
INTERNATIONAL COPYRIGHT CON-
VENTION OF SOUTH AMERICA,
HELD AT MONTEVIDEO, JANUARY

ii, 1889.

The Congress held at Montevideo for the revision
of international laws came to some important de-
cisions regarding international copyright. The
seven states represented were the Argentine Re-
public, Bolivia, Brazil, Chili, Paraguay, Peru, and
Uruguay. In the main the articles of agreement
closely followed the provisions of the Berne Con-
ference of 1886. We briefly summarize a few im-
portant differences :

1. The South American treaty secures its benefits to all authors
who have published a work in one of the contracting states, without
regard to his nationality. The Convention of Berne only protects
authors born in one of the contracting countries. It modifies this
rule by protecting the publisher of a work issued in one of the
countries of the Union, although the author is an alien. The pro-
tection to the work is the same, but it is the publisher who profits
by it.

2. In South America the rights for translations are exactly the
same as the right of the author in the original work, whereas the
Berne Conference only assures the exclusive right of translation up
to the expiration of ten years from the date of publication of the
original work in one of the countries of the Union.

3. In the enumeration of what is understood under the expression

THE MONTEVIDEO CONVENTION. 315

"literary and artistic works," photographs and choregraphic works
are specifically mentioned, whereas the Berne Conference merely
makes a general mention of processes of reproduction.

4. The treaty of South America contains no clause relating to pub-
lic performances or representations of protected works, whereas the
Berne Conference decrees that such works shall not be publicly per-
formed or reprinted if the author has declared on the title-page that
he forbids public performances, which declaration makes such per-
formances a violation of original copyright.

5. The South American treaty may be extended to other nations
which did not take part in the Congress. The Berne Convention
guarantees admission to such countries as shall assure within their
jurisdiction the protection which is the object of the Convention.

6. The South American treaty says nothing of the formalities of
registering and depositing works to be protected. According to the
Berne Convention these formalities can only be exacted in the
country of origin and according to the laws enacted by that country.

7. The South American treaty makes no mention of works pub-
lished before its going into force, whereas the Berne Convention has
made provision in a special protocol for works published before its
decisions went into force.

It may be of interest to note that these contracting South Ameri-
can countries represent a total population of 24,800.000.

The treaty embodying these points was signed by the delegates of^
the seven states, and it is to go into operation between such states as'
may ratify it as soon as ratified by them, no time being specified
for such ratification.1

1 The above summary is based upon the report of the Publishers'
Weekly. — Editor.

XVIII.

STATES WHICH HAVE BECOME PARTIES
TO THE CONVENTION OF BERNE, JAN-
UARY, 1896.

Germany.

France, with Algeria and Colonies.
Great Britain, with Colonies.
Hayti.
Italy.
Belgium.

Spain, with Colonies.
' Luxembourg.
Morocco.
Montenegro.
Switzerland.
Tunis.

XIX.

THE NATURE AND ORIGIN OF COPY-
RIGHT.

By R. R. Bowker.

Copyright (from the Latin copia, plenty) means,
in general, the right to copy, to make plenty. In
its specific application it means the right to multiply
copies of those products of the human brain known
as literature and art.

There is another legal sense of the word " copy-
right " much emphasized by several English justices.
Through the low Latin use of the word copia, our
word " copy " has a secondary and reversed mean-
ing, as the pattern to be copied or made plenty, in
which sense the schoolboy copies from the "copy"
set in his copy-book, and the modern printer calls
for the author's " copy." Copyright, accordingly,
may also mean the right in copy made (whether the
original work or a duplication of it), as well as the
right to make copies, which by no means goes with
the work or any duplicate of it. Said Lord St.
Leonards: " When we are talking of the right of an
author we must distinguish between the mere right

318 THE QUESTION OF COPYRIGHT.

to his manuscript, and to any copy which he may
choose to make of it, as his property, just like any
other personal chattel, and the right to multiply
copies to the exclusion of every other person. Noth-
ing can be more distinct than these two things.
The common law does give a man who has com-
posed a work a right to it as composition, just as
he has a right to any other part of his personal
property ; but the question of the right of excluding
all the world from copying, and of himself claiming
the exclusive right of forever copying his own com-
position after he has published it to the world, is a
totally different thing." Baron Parks, in the same
case, pointed out expressly these two different legal
senses of the word copyright, the right in copy, a
right of possession, always fully protected by the
common law, and the right to copy, a right of mul-
tiplication, which alone has been the subject of
special statutory protection.

There is nothing which may more properly be
called property than the creation of the individual
brain. For property means a man's very own, and
there is nothing more his own than the thought,
created, made out of no material thing (unless the
nerve-food which the brain consumes in the act of
thinking be so counted), which uses material things
only for its record or manifestation. The best
proof of tfww-ership is that, if this individual man or
woman had not thought this individual thought,
realized in writing or in music or in marble, it would
not exist. Or if the individual, thinking it, had put
it aside without such record, it would not, in any

THE NATURE AND ORIGIN OF COPYRIGHT. 319

practical sense, exist. We cannot know what " might
have beens " of untold value have been lost to the
world where thinkers, such as inventors, have had
no inducement or opportunity to so materialize
their thoughts.

It is sometimes said, as a bar to this idea of prop-
erty, that no thought is new — that every thinker is
dependent upon the gifts of nature and the thoughts
of other thinkers before him, as every tiller of the
soil is dependent upon the land as given by nature
and improved by the men who have toiled and
tilled before him — a view of which Henry C. Carey
has been the chief exponent in this country. But
there is no real analogy — aside from the question
whether the denial of individual property in land
would not be setting back the hands of progress. If
Farmer Jones does not raise potatoes from a piece
of land, Farmer Smith can ; but Shakespeare can-
not write Paradise Lost nor Milton Much Ado,
though before both Dante dreamed and Boccaccio
told his tales. It was because of Milton and Shake-
speare writing, not because of Dante and Boccaccio,
who had written, that these immortal works are
treasures of the English tongue. It was the very
self of each, in propria persona, that gave these form
and worth, though they used words that had come
down from generations as the common heritage of
English-speaking men. Property in a stream of
water, as has been pointed out, is not in the atoms
of the water but in the flow of the stream.

Property right in unpublished works has never
been effectively questioned — a fact which in itself

320 THE QUESTION OF COPYRIGHT.

confirms the view that intellectual property is a
natural inherent right. The author has " supreme
control " over an unpublished work, and his manu-
script cannot be utilized by creditors as assets with-
out his consent. " If he lends a copy to another,"
says Baron Parkes, " his right is not gone ; if he
sends it to another under an implied undertaking
that he is not to part with it or publish it he has a
right to enforce that undertaking." The receiver of
a letter, to whom the paper containing the writing
has undoubtedly been given, has no right to publish
or otherwise use the letter without the writer's con-
sent. The theory that, by permitting copies to be
made, an author dedicates his writing to the public,
as an owner of land dedicates a road to the public
by permitting public use of it for twenty-one years,
overlooks the fact that in so doing the author only
conveys to each holder of his book the right to indi-
vidual use, and not the right to multiply copies ; as
though the landowner should not give, but sell, per-
mission to individuals to pass over his road, without
any permission to them to sell tickets for the same
privilege to other people. The owner of a right does
not forfeit a right by selling a privilege.

It is at the moment of publication that the un-
disputed possessory right passes over into the much-
disputed right to multiply copies, and that the vexed
question of the true theory of copyright property
arises. The broad view of literary property holds
that the one kind of copyright is involved in the
other. The right to have is the right to use. An
author cannot use — that is, get beneficial results

THE NATURE AND ORIGIN OF COPYRIGHT. 321

from — his work, without offering copies for sale. He
would be otherwise like the owner of a loaf of bread
who was told that the bread was his until he wanted
to eat it. That sale would seem to contain " an im-
plied undertaking " that the buyer has liberty to use
his copy but not to multiply it. Peculiarly in this
kind of property the right of ownership consists in
the right to prevent use of one's property by others
without the owner's consent. The right of exclu-
sion seems to be, indeed, a part of ownership. In the
case of land the owner is entitled to prevent trespass
to the extent of a shot-gun, and in the same way,
the law recognizes the right to use violence, even to
the extreme, in preventing others from possession
of one's own property of any kind. The owner of
a literary property has, however, no physical means
of defence or redress ; the very act of publication by
which he gets a market for his productions opens
him to the danger of wider multiplication and pub-
lication without his consent. There is, therefore, no
kind of property which is so dependent on the help
of the law for the protection of the real owner.

The inherent right of authors is a right at what is
called common law — that is, natural or customary
law. So far as concerns the undisputed rights be-
fore publication, the copyright laws are auxiliary
merely to common law. Rights exist before reme-
dies ; remedies are merely invented to enforce rights.
" The seeking for the law of the right of property in
the law of procedure relating to the remedies," says
Copinger, " is a mistake similar to supposing that the
mark on the ear of an animal is the cause, instead

322 THE QUESTION OF COPYRIGHT.

of the consequence, of property therein." After
the invention of printing it became evident that
new methods of procedure must be devised to en-
force common law rights. Copyright became, there-
fore, the subject of statute law, by the passage of
laws imposing penalties for a theft which, without
such laws, could not be punished.

These laws, covering, naturally enough, only the
country of the author, and specifying a time during
which the penalties could be enforced, and providing
means of registration by which authors could regis-
ter their property rights, as the title to a house is
registered when it is sold, had an unexpected result.
The statute of Anne, which is the foundation of
present English copyright law, intended to protect
authors' rights by providing penalties against their
violation, had the effect of limiting those rights. It
was doubtless the intention of those who framed
the statute of Anne to establish, for the benefit of
authors, specific means of redress. Overlooking,
apparently, the fact that law and equity, as their
principles were then established, enabled authors to
use the same means of redress, so far as they held
good, which persons suffering wrongs as to other
property had, the law was so drawn that, in I774>
the English House of Lords (against, however, the
weight of one half of English judicial opinion) de-
cided that, instead of giving additional sanction to a
formerly existing right, the statute of Anne had
substituted a new and lesser right, to the exclusion
of what the majority of English judges held to have
been an old and greater right. Literary and like

THE NATURE AND ORIGIN OF COPYRIGHT. $2$

property to this extent lost the character of copy-
right, and became the subject of copy --privilege, de-
pending on legal enactment for the security of the
private owner. American courts, wont to follow
English precedent, have rather taken for granted
this view of the law of literary property, and our
Constitution, in authorizing Congress to secure " for
limited terms to authors and inventors the exclusive
right to their respective writings and discoveries,"
was evidently drawn from the same point of view,
though it does not in itself deny or withdraw the
natural rights of the author at common law.

XX.

THE EVOLUTION OF COPYRIGHT.

By Brander Matthews.
(Reprinted from the Political Science Quarterly.)

" THE only thing that divides us on the question
of copyright seems to be a question as to how much
property there is in books," said James Russell
Lowell, two or three years ago ; and he continued,

' ' but that is a question we may be well content to waive till we have
decided that there is any property at all in them. I think that, in
order that the two sides should come together, nothing more is neces-
sary than that both should understand clearly that property, whether
in books or in land or in anything else, is artificial ; that it is purely
a creature of law ; and, more than that, of lo'cal and municipal law.
When we have come to an agreement of this sort, I think we shall not
find it difficult to come to an agreement that it will be best for us to
get whatever acknowledgment of property we can, in books, to start
with."

" An author has no natural right to a property in
his production," said the late Matthew Arnold, in
his acute and suggestive essay on copyright,

" but then neither has he a natural right to anything whatever which
he may produce or acquire. What is true is that a man has a strong
instinct making him seek to possess what he has produced or ac-
quired, to have it at his own disposal ; that he finds pleasure in so
having it, and finds profit. The instinct is natural and salutary,
although it may be over-stimulated and indulged to excess. One of

THE EVOLUTION OF COPYRIGHT. 325

the first objects of men, in combining themselves in society, has been
to afford to the individual, in his pursuit of this instinct, the sanction
and assistance of the laws, so far as may be consistent with the gen-
eral advantage of the community. The author, like other people,
seeks the pleasure and the profit of having at his own disposal what
he produces. Literary production, wherever it is sound, is its own
exceeding great reward ; but that does not destroy or diminish the
author's desire and claim to be allowed to have at his disposal, like
other people, that which he produces, and to be free to turn it to
account. It happens that the thing which he produces is a thing
hard for him to keep at his own disposal, easy for other people to
appropriate ; but then, on the other hand, he is an interesting pro-
ducer, giving often a great deal of pleasure by what he produces, and
not provoking Nemesis by any huge and immoderate profits on his
production, even when it is suffered to be at his own disposal. So
society has taken him under its protection, and has sanctioned his
property in his work, and enabled him to have it at his own disposal."

Perhaps a consideration of the evolution of copy-
right in the past will conduce to a closer understand-
ing of its condition at present, and to a clearer
appreciation of its probable development in the
future. It is instructive as well as entertaining to
trace the steps by which men, combining themselves
in society, in Arnold's phrase, have afforded to the
individual author the sanction of the law in possess-
ing what he has produced ; and it is no less in-
structive to note the successive enlargements of
jurisprudence by which property in books — which
is, as Lowell says, the creature of local municipal
law — has slowly developed until it demands and re-
ceives international recognition.

The maxim that " there is no wrong without a
remedy," indicates the line of legal development.

326 THE QUESTION OF COPYRIGHT.

The instinct of possession is strong; and in the
early communities, where most things were in com-
mon, it tended more and more to assert itself.
When anything which a man claimed as his own
was taken from him, he had a sense of wrong, and
his first movement was to seek vengeance— much as
a dog defends his bone, growling when it is taken
from him, or even biting. If public opinion sup-
ported the claim of possession, the claimant would
be sustained in his effort to get revenge. So, from
the admission of a wrong, would grow up the recog-
nition of a right. The moral right became a legal
right as soon as it received the sanction of the State.
The State first commuted the right of vengeance,
and awarded damages, and the action of tort was
born. For a long period property was protected
only by the action for damages for disseizin ; but
this action steadily widened in scope until it became
an action for recovery ; and the idea of possession
or seizin broadened into the idea of ownership.
This development went on slowly, bit by bit and
day by day, under the influence of individual self-
assertion and the resulting pressure of public opin-
ion, which, as Lowell once tersely put it, is like
that of the atmosphere: "You can't see it, but it is
fifteen pounds to the square inch all the same."

The individual sense of wrong stimulates the
moral growth of society at large ; and in due course
of time, after a strenuous struggle with those who
profit by the denial of justice, there comes a calm at
last, and ethics crystallize into law. In more mod-
ern periods of development, the recognition of new

THE EVOLUTION OF COPYRIGHT. 327

forms of property generally passes through three
stages. First, there is a mere moral right, asserted
by the individual and admitted by most other indi-
viduals, but not acknowledged by society as a whole.
Second, there is a desire on the part of those in
authority to find some means of protection for this
admitted moral right, and the action in equity is
allowed — this being an effort to command the con-
science of those whom the ordinary policeman is
incompetent to deal with. And thirdly, in the full-
ness of time, there is declared a law setting forth
clearly the privileges of the producer and the means
whereby he can defend his property and recover
damages for an attack on it. This process of legis-
lative declaration of rights is still going on all about
us and in all departments of law, as modern life de-
velops and spreads out and becomes more and more
complex ; and we have come to a point where we
can accept Jhering's definition of a legal right as "a
legally protected interest."

As it happens, this growth of a self-asserted claim
into a legally protected interest can be traced with
unusual ease in the evolution of copyright, because
copyright itself is comparatively a new thing. The
idea of property was probably first recognized in
the tools which early man made for himself, and in
the animals or men whom he subdued ; later, in the
soil which he cultivated. In the beginning the idea
attached only to tangible things — to actual physical
possession — to that which a man might pass from
hand to hand. Now, in the dawn of history nothing
was less a physical possession than literature ; it was

328 THE QUESTION OF COPYRIGHT.

not only intangible, it was invisible even. There
was literature before there was any writing, before
an author could set down his lines in black and
white. Homer and the rhapsodists published their
poems by word of mouth. Litera scripta manet ;
but the spoken poem flew away with the voice of
the speaker and lingered only in the memory. Even
after writing was invented, and after parchment and
papyrus made it possible to preserve the labors of
the poet and the historian, these authors had not,
for many a century yet, any thought of making
money by multiplying copies of their works.

The Greek dramatists, like the dramatists of to-
day, relied for their pecuniary reward on the public
performance of their plays. There is a tradition
that Herodotus, when an old man, read his History
to an Athenian audience at the Panathenaic festival,
and so delighted them that they gave him as a
recompense ten talents — more than twelve thou-
sand dollars of our money. In Rome, where there
were booksellers having scores of trained slaves to
transcribe manuscripts for sale, perhaps the success-
ful author was paid for a poem, but we find no trace
of copyright or of anything like it. Horace (Ars
Poetica, 345) speaks of a certain book as likely to
make money for a certain firm of booksellers. In
the other Latin poets, and even in the prose writers
of Rome, we read more than one cry of suffering
over the blunders of the copyists, and more than
one protest in anger against the mangled manu-
scripts of the hurried, servile transcribers. But
nowhere do we find any complaint that the author's

THE EVOLUTION OF COPYRIGHT. 329

rights have been infringed; and this, no doubt, was
because the author did not yet know that he had
any wrongs. Indeed, it was only after the inven-
tion of printing that an author had an awakened
sense of the injury done him in depriving him of
the profit of vending his own writings ; because it
was only after Gutenberg had set up as a printer
that the possibility of definite profit from the sale
of his works became visible to the author. Before
then he had felt no sense of wrong ; he had thought
mainly of the honor of a wide circulation of his
writings ; and he had been solicitous chiefly about
the exactness of the copies. With the invention of
printing there was a chance of profit ; and as soon
as the author saw this profit diminished by an un-
authorized reprint, he was conscious of injury, and
he protested with all the strength that in him lay.
He has continued to protest from that day to this ;
and public opinion has been aroused, until by slow
steps the author is gaining the protection he claims.

It is after the invention of printing that we must
seek the origin of copyright. Mr. De Vinne shows
that Gutenberg printed a book with movable types,
at Mentz, in 145 1. Fourteen years later, in 1465,
two Germans began to print in a monastery near
Rome, and removed to Rome itself in 1467; and in
1469 John of Spira began printing in Venice. Louis
XI. sent to Mentz Nicholas Jenson, who introduced
the art into France in 1469. Caxton set up the
first press in England in 1474.

In the beginning these printers were publishers also;
most of their first books were Bibles, prayer-books,

330 THE QUESTION OF COPYRIGHT.

and the like ; but in 1465, probably not more than
fifteen years after the first use of movable types,
Fust and Schoeffer put forth an edition of Cicero's
Offices — " the first tribute of the new art to polite
literature," Hallam calls it. The original editing of
the works of a classic author, the comparison of
manuscripts, the supplying of lacuna, the revision
of the text, called for scholarship of a high order ;
this scholarship was sometimes possessed by the
printer-publisher himself ; but more often than not
he engaged learned men to prepare the work for him
and to see it through the press. This first edition
was a true pioneer's task ; it was a blazing of the
path and a clearing of the field. Once done, the
labor of printing again that author's writings in a
condition acceptable to students would be easy.
Therefore the printer-publisher who had given time
and money and hard work to the proper presenta-
tion of a Greek or Latin book was outraged when a
rival press sent forth a copy of his edition, and sold
the volume at a lower price, possibly, because there
had been no need to pay for the scholarship which
the first edition had demanded. That the earliest
person to feel the need of copyright production
should have been a printer-publisher is worthy of
remark ; obviously, in this case, the printer-publisher
stood for the author and was exactly in his position.
He was prompt to protest against this disseizin '

1 If any lawyer objects to the use of the word " disseizin " in con-
nection with other than real property, he is referred to Prof. J. B.
Ames's articles on Disseizin of Chattels, in the Harvard Law
Review, Jan. — March, 1S90.

THE EVOLUTION OF COPYRIGHT. 33 1

of the fruit of his labors ; and the earliest legal
recognition of his rights was granted less than a
score of years after the invention of printing had
made the injury possible. It is pleasant for us
Americans to know that this first feeble acknowledg-
ment of copyright was made by a republic. The
Senate of Venice issued an order, in 1469, that John
of Spira should have the exclusive right for five
years to print the epistles of Cicero and of Pliny.1

This privilege was plainly an exceptional exercise
of the power of the sovereign state to protect the
exceptional merit of a worthy citizen ; it gave but
a limited protection ; it guarded but two books, for
a brief period only, and only within the narrow
limits of one commonwealth. But, at least, it
established a precedent — a precedent which has
broadened down the centuries until now, four hun-
dred years later, any book published in Venice is,
by international conventions, protected from pillage
for a period of at least fifty years, through a terri-
tory which includes almost every important country
of continental Europe. If John of Spira were to
issue to-day his edition of Tully's Letters, he need
not fear an unauthorized reprint anywhere in the
kingdom of which Venice now forms a part, or in
his native land, Germany, or in France, Belgium, or
Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from
the authorities of the State wherein the book was
printed spread rapidly. In 1491 Venice gave the pub-

1 Sanuto, Script. Rerum. Italic, t xxii., p. 1189; cited by Hallarn,
History of Middle Ages, chap. ix. , part ii.

332 THE QUESTION OF COPYRIGHT.

licist, Peter of Ravenna, and the publisher of his
choice the exclusive right to print and sell his PJice?iixx
— the first recorded instance of a copyright awarded
directly to an author. Other Italian states " en-
couraged printing by granting to different printers
exclusive rights for fourteen years, more or less,
of printing specified classics," and thus the time
of the protection accorded to John of Spira was
doubled. In Germany the first privilege was issued
at Nuremberg, in 1501. In France the privilege
covered but one edition of a book ; and if the work
went to press again, the publisher had to seek a
second patent.

In England, in 15 18, Richard Pynson, the King's
Printer, issued the first book cum privilegio ; the
title-page declaring that no one else should print or
import in England any other copies for two years ;
and in 1530 a privilege for seven years was granted
to John Palsgrave " in the consideration of the value
of his work and the time spent on it ; this being the
first recognition of the nature of copyright as fur-
nishing a reward to the author for his labor."2 In
1 533 Wynkyn de Worde obtained the king's privi-
lege for his second edition of Witinton's Grammar.
The first edition of this book had been issued ten
years before, and during the decade it had been re-
printed by Peter Trevers without leave — a despoil-
ment against which Wynkyn de Worde protested
vigorously in the preface to the later edition, and
on account of which he applied for and secured pro-

1 Bowker, Copyright, p. 5.

3 T. E. Scrutton, Laws of Copyright, p. 72.

THE EVOLUTION OF COPYRIGHT. 333

tection. Here again is evidence that a man does
not think of his rights until he feels a wrong. Jhe-
ring bases the struggle for law on the instinct of
ownership as something personal, and the feeling
that the person is attacked whenever a man is de-
prived of his property ; and, as Walter Savage
Landor wrote : " No property is so entirely and
purely and religiously a man's own as what comes
to him immediately from God, without intervention
or participation." The development of copyright,
and especially its rapid growth within the past cent-
ury, is due to the loud protests of authors deprived
of the results of their labors, and therefore smarting
as acutely as under a personal insult.'

The invention of printing was almost simultaneous
with the Reformation, with the discovery of Amer-
ica, and with the first voyage around the Cape of
Good Hope. There was in those days a ferment
throughout Europe, and men's minds were making
ready for a great outbreak. Of this movement, in-
tellectual on one side and religious on the other, the
governments of the time were afraid ; they saw that
the press was spreading broadcast new ideas which
might take root in the most inconvenient places,
and spring up at the most inopportune moments ;
so they sought at once to control the printing of
books. In less than a century after Gutenberg had
cast the first type, the privileges granted for the
encouragement and reward of the printer-publisher
and of the author were utilized to enable those in
authority to prevent the sending forth of such works

1 Jhering, The Struggle for Law (translated by J. J. Lalor).

334 THE QUESTION OF COPYRIGHT.

as they might choose to consider treasonable or
heretical. P'or a while, therefore, the history of the
development of copyright is inextricably mixed with
the story of press-censorship. In France, for ex-
ample, the edict of Moulins, in 1566, forbade "any
person whatsoever printing or causing to be printed
any book or treatise without leave and permission
of the king, and letters of privilege." 1 Of course,
no privilege was granted to publisher or to author if
the royal censors did not approve of the book.

In England the " declared purpose of the Sta-
tioners' Company, chartered by Philip and Mary in
1556, was to prevent the propagation of the Pro-
testant Reformation." 2 The famous " Decree of
Star Chamber concerning printing," issued in 1637,
set forth,

"that no person or persons whatsoever shall at anytime print or
cause to be imprinted any book or pamphlet whatsoever, unless the
same book or pamphlet, and also all and every the titles, epistles,
prefaces, proems, preambles, introductions, tables, dedications, and
other matters and things whatsoever thereunto annexed, or therewith
imprinted, shall be first lawfully licensed."

In his learned introduction to the beautiful edition
of this decree, made by him for the Grolier Club,
Mr. De Vinne remarks that at this time the people
of England were boiling with discontent ; and, " an-
noyed by a little hissing of steam," the ministers of
Charles I. " closed all the valves and outlets, but did
not draw or deaden the fires which made the steam ; "

1 Alcide Darras, Du Droit des Auteurs, p. 169.

2 E. S. Drone, A Treatise on the Law of Property in Intellectual
Productions, p. 56.

THE EVOLUTION OF COPYRIGHT. 335

then " they sat down in peace, gratified with their
work, just before the explosion which destroyed
them." This decree was made the eleventh day of
July, 1637; and in 1641 the Star Chamber was
abolished ; and eight years later the king was
beheaded at Whitehall.

The slow growth of a protection, which was in the
beginning only a privilege granted at the caprice of
the officials, into a legal right, to be obtained by the
author by observing the simple formalities of regis-
tration and deposit, is shown in a table given in the
appendix (page 370) to the Report of the Copyright
Commission (London, 1878). The salient dates in
this table are these :

" 1637. — Star Chamber Decree supporting copyright.

1643. — Ordinance of the Commonwealth concerning licensing.

Copyright maintained, but subordinate to political objects.
1662. — 13 and 14 Car. II., c. 33. — Licensing Act continued by suc-
cessive Parliaments ; gives copyright coupled with license.
1710. — 8 Anne, c. 19. — First Copyright Act. Copyright to be for

fourteen years, and if author then alive, for fourteen years

more. Power to regulate price.
1814. — 54 Geo. III., c. 156. — Copyright to be for twenty-eight

years absolutely, and further for the life of the author, if then

living.
1842. — 5 and 6 Vict., c. 45. — Copyright to be for the life of the

author and seven years longer, or for forty-two years, whichever

term last expires."

From Mr. Bowker's chapter on the History of
Copyright in the United States, it is easy to draw up
a similar table showing the development in this
country :

" 1793- — Connecticut, in January, and Massachusetts, in March,
passed acts granting copyrights for twenty-one years. In May

336 THE QUESTION OF COPYRIGHT.

Congress recommended the States to pass acts granting copy-
right for fourteen years — seemingly a step backward from the
Connecticut and Massachusetts statutes.

1785 and 1786. — Copyright Acts passed in Virginia, New York, and
New Jersey.

17S6. — Adoption of the Constitution of the United States, authoriz-
ing Congress ' to promote the progress of science and useful
arts by securing for limited times, to authors and inventors, the
exclusive right to their respective writings and discoveries.'

1790. — First United States Copyright Act. Copyright to citizens or
residents for fourteen years, with a renewal for fourteen years
more if the author were living at the expiration of the first
term.

1831. — Copyright to be for twenty-eight years, with a renewal for
fourteen years more, if the author, his widow, or his children are
living at the expiration of the first term.

1856. — Act securing to dramatists stage-right; that is, the sole right
to license the performance of a play.

1873-4. — The Copyright Laws were included in the Revised Statutes
(sections 4948 to 4971)."

From the exhaustive and excellent work of M.
Lyon-Caen and M. Paul Delalain on Literary and
Artistic Property^ we see that France, now, perhaps,
the foremost of all nations in the protection it ac-
cords to literary property, lagged behind Great
Britain and the United States in taking the second
step in the evolution of copyright. It was in 1710
that the act of Anne gave the British author a legal
right independent of the caprice of any official ; and
as soon as the United States came into being, the
same right was promptly confirmed to our citizens;
but it was not until the fall of the ancient regime
that a Frenchman was enabled to take out a copy-

1 La ProprUte Litter aire et A rtistique : Lois Francaises et J^trangeres
(Paris, Pichon, 1889, 2 vols.).

THE EVOLUTION OF COPYRIGHT. 337

right at will. Up to the eve of the Revolution of
1789, French authors could do no more, say MM.
Lyon-Caen and Delalain, " than ask for a privilege
which might always be refused them " (page 8). As
was becoming in a country where the drama has
ever been the most important department of lit-
erature, the first step taken was a recognition of
the stage-right of the dramatist, in a law passed in
1 791. Before that, a printed play could have been
acted in France by any one, but thereafter the ex-
clusive right of performance was reserved to the
playwright ; and at one bound the French went far
beyond the limit of time for which any copyright
was then granted either in England or America,
as the duration of stage-right was to be for the
author's life and for five years more. It is to be
noted, also, that stage-right was not acquired by
British and American authors for many years after
1791.

Two years after the French law protecting stage-
right, in the dark and bloody year of 1793, an act
was passed in France granting copyright for the
life of the author and for ten years after his death.
It is worthy of remark that, as soon as the privi-
leges and monopolies of the monarchy were abol-
ished, the strong respect the French people have
always felt for literature and art was shown by the
extension of the term of copyright far beyond that
then accorded in Great Britain and the United
States ; and although both the British and the
American term of copyright has been prolonged

since 1793, so also has the French, and it is now
22

338 THE QUESTION OF COPYRIGHT.

for life of the author and for fifty years after his
death.

The rapid development of law within the past
century and the effort it makes to keep pace with
the moral sense of society — a sense that becomes
finer as society becomes more complicated and as
the perception of personal wrong is sharpened — can
be seen in this brief summary of copyright develop-
ment in France, where, but a hundred years ago, an
author had only the power of asking for a privilege
which might be refused him. The other countries
of Europe, following the lead of France as they
have been wont to do, have formulated copyright
laws not unlike hers. In prolonging the duration
of the term of copyright, one country has been even
more liberal. Spain extends it for eighty years
after the author's death. Hungary, Belgium, and
Russia accept the French term of the author's life
and half a century more. Germany, Austria, and
Switzerland grant only thirty years after the author
dies. Italy gives the author copyright for his life,
with exclusive control to his heirs for forty years
after his death ; after that period the exclusive
rights cease, but a royalty of five per cent, on the
retail price of every copy of every edition, by
whomsoever issued, must be paid to the author's
heirs for a further term of forty years: thus a
quasi-copyright is granted for a period extending
to eighty years after the author's death, and the
Italian term is approximated to the Spanish. Cer-
tain of the Spanish-American nations have exceeded
the liberality of the mother-country : in Mexico, in

THE EVOLUTION OF COPYRIGHT. 339

Guatemala, and in Venezuela the author's rights are
not terminated by the lapse of time, and copyright
is perpetual.1

To set down with precision what has been done
in various countries will help us to see more clearly
what remains to be done in our own. It is only by
considering the trend of legal development that we
can make sure of the direction in which efforts to-
ward improvement can be guided most effectively.
For example : the facts contained in the preceding
paragraphs show that no one of the great nations of
continental Europe grants copyright for a less term
than the life of the author and a subsequent period
varying from thirty to eighty years. A comparison
also of the laws of the various countries, as con-
tained in the invaluable volumes of MM. Lyon-
Caen and Delalain, reveals to us the fact that there
is a steady tendency to lengthen this term of years,
and that the more recent the legislation the more
likely is the term to be long. In Austria, for in-
stance, where the term was fixed in 1846, it is for
thirty years after the author's death ; while in the
twin-kingdom of Hungary, where the term was fixed
in 1884, it is for fifty years.

On a contrast of the terms of copyright granted
by the chief nations of continental Europe with
those granted by Great Britain and the United

1 Here again it may be noted that certain decisions in the United
States courts, to the effect that the performance of a play is not pub-
lication, and that therefore an unpublished play is protected by the
common law and not by the copyright acts, recognize the perpetual
stage-right of any dramatist who will forego the doubtful profit of
appearing in print.

340 THE QUESTION OF COPYRIGHT.

States, it will be seen that the English-speaking
race, which was first to make the change from priv-
ilege to copyright, and was thus the foremost in
the protection of the author, now lags sadly behind.
The British law declares that the term of copyright
shall be for the life of the author and only seven
years thereafter, or for forty-two years, whichever
term last expires. The American law does not even
give an author copyright for the whole of his life,
if he should be so unlucky as to survive forty-two
years after the publication of his earlier books ; it
grants copyright for twenty-eight years only, with a
permission to the author himself, his widow, or his
children to renew for fourteen years more. This is
niggardly when set beside the liberality of France,
to say nothing of that of Italy and Spain. Those
who are unwilling to concede that the ethical devel-
opment of France, Italy, and Spain is more advanced
than that of Great Britain and the United States, at
least as far as literary property is concerned, may
find some comfort in recalling the fact that the
British act was passed in 1842 and the American in
1 83 1 — and in threescore years the world moves.

There is no need to dwell on the disadvantages of
the existing American law, and on the injustice
which it works. It may take from an author the
control of his book at the very moment when he is
at the height of his fame and when the infirmities of
age make the revenue from his copyrights most nec-
essary. An example or two from contemporary
American literature will serve to show the demerits
of the existing law. The first part of Bancroft's

THE EVOLUTION OF COPYRIGHT. 341

History of the United States, the history of the
colonization, was published in three successive vol-
umes in 1834, 1837, and 1840; and although the au-
thor, before his death, revised and amended this
part of his work, it has been lawful, since 1882, for
any man to take the unrevised and incorrect first
edition and to reprint it, despite the protests of the
author, and in competition with the improved ver-
sion which contains the results of the author's
increased knowledge and keener taste.

At this time of writing (1890) all books published
in the United States prior to 1848 are open to
any reprinter ; and the reprinter has not been slow
to avail himself of this permission. The children
of Fenimore Cooper are alive, and so are the
nieces of Washington Irving ; but they derive no
income from the rival reprints of the LeatJierstocking
Tales or of the Sketch Book, reproduced from the
earliest editions without any of the authors' later
emendations.1 Though the family of Cooper and
the family of Irving survive, Cooper and Irving are
dead themselves, and cannot protest. But there
are living American authors besides Bancroft who
are despoiled in like manner. Half a dozen vol-
umes were published by Mr. Whittier and by Dr.
Holmes before 1848, and these early, immature,
uncorrected verses are now reprinted and offered
to the public as " Whittier s Poems" and "Holmes's
Poems." Sometimes the tree of poesy flowers early
and bears fruit late. So it is with Lowell, whose

1 The emendations, having been made within forty-two years, are,
of course, still guarded by copyright.

342 THE QUESTION OF COPYRIGHT.

Heartsease and Rue we received with delight only a
year or two ago, but whose Legend of Brittany, Vision
of Sir Lanufal, Fable for Critics and first series of
Biglow Papers were all published forty-two years
ago or more, and are therefore no longer the prop-
erty of their author, but have passed from his con-
trol absolutely and forever.

Besides the broadening of a capricious privilege
into a legal right, and besides the lengthening of
the time during which this right is enforced, a
steady progress of the idea that the literary laborer
is worthy of his hire is to be seen in various newer
and subsidiary developments. With the evolution
of copyright, the author can now reserve certain
secondary rights of abridgment, of adaptation, and
of translation. In all the leading countries of the
world the dramatist can now secure stage-right,1
i.e., the sole right to authorize the performance
of a play on a stage. Copyright and stage-right
are wholly different ; and a dramatist is entitled to
both. The author of a play has made something
which may be capable of a double use, and it seems
proper that he should derive profit from both uses.
His play may be read only and not acted, like
Lord Tennyson's Harold and Longfellow's Spanish
Student, in which case the copyright is more valu-
able than the stage-right. Or the play may be acted
only, like the imported British melodramas, and of
so slight a literary merit that no one would care

1 Mr. Drone uses the word "playright," but this is identical in
sound with "playwright," and it seems better to adopt the word
" stage-right," first employed by Charles Reade.

THE EVOLUTION OF COPYRIGHT. 343

to read it, in which case the stage-right would be
more valuable than the copyright. Or the drama
may be both readable and actable, like Shakespeare's
and Sheridan's plays, like Augier's and Labiche's,
in which case the author derives a double profit,
controlling the publication by copyright and con-
trolling performance by stage-right. It was in 1791,
as we have seen, that France granted stage-right.
In England, " the first statute giving to dramatists
the exclusive right of performing their plays was
the 3 and 4 William IV., c. 15, passed in 1833," says
Mr. Drone (page 601). In the United States, stage-
right was granted in 185 1 to dramatists who had
copyrighted their plays here.

Closely akin to the stage-right accorded to the
dramatist is the sole right of dramatization accorded
to the novelist. Indeed, the latter is an obvious
outgrowth of the former. Until the enormous in-
crease of the reading public in this century, conse-
quent upon the spread of education, the novel was
an inferior form to the drama and far less profitable
pecuniarily. It is only within the past hundred
years — one might say, fairly enough, that it is only
since the Waverley novels took the world by storm —
that the romance has claimed equality with the play.
Until it did so, no novelist felt wronged when his
tale was turned to account on the stage, and no
novelist ever thought of claiming a sole right to the
theatrical use of his own story. Lodge, the author
of Rosalynde, would have been greatly surprised if
any one had told him that Shakespeare had made an
improper use of his story in founding on it As You

344 THE QUESTION OF COPYRIGHT.

Like It. On the contrary, in fact, literary history
would furnish many an instance to prove that the
writer of fiction felt that a pleasant compliment had
been paid him when his material was made over by
a writer for the stage. Scott, for example, aided
Terry in adapting his novels for theatrical perform-
ance ; and he did this without any thought of re-
ward. But by the time that Dickens succeeded
Scott as the most popular of English novelists the
sentiment was changing. In Nicholas Nickleby the
author protested with acerbity against the hack
playwrights who made haste to put a story on the
stage even before its serial publication was finished.
His sense of injury was sharpened by the clumsy
disfiguring of his work. Perhaps the injustice was
never so apparent as when a British playwright, one
Fitzball, captured Fenimore Cooper's Pilot in 1826
and turned Long Tom Coffin into a British sailor !
— an act of piracy which a recent historian of the
London theatres, Mr. H. B. Baker, records with
hearty approval. The possibility of an outrage like
this still exists in England. In France, of course,
the novelist has long had the exclusive right to
adapt his own story to the stage ; and in the United
States, also, he has it, if he gives notice formally
on every copy of the book itself that he desires to
reserve to himself the right of dramatization. But
England has not as yet advanced thus far ; and no
English author can make sure that he may not see
a play ill-made out of his disfigured novel. Charles
Reade protested in vain against unauthorized dram-
atization of his novels, and then, with character-

THE EVOLUTION OF COPYRIGHT. 345

istic inconsistency, made plays out of novels by
Anthony Trollope and Mrs. Hodgson Burnett with-
out asking their consent. But the unauthorized
British adapter may not lawfully print the play he
has compounded from a copyright novel, as any
multiplication of copies would be an infringement
of the copyright ; and Mrs. Hodgson Burnett suc-
ceeded in getting an injunction against an unauthor-
ized dramatization of Little Lord Fauntleroy on proof
that more than one copy of the unauthorized play
had been made for use in the theatre. It is likely
that one of the forthcoming modifications of the
British law will be the extension to the novelist of
the sole right to dramatize his own novel.

II.

From a consideration of the lengthening of the
term of copyright and the development of certain
subsidiary rights now acquired by an author, we
come to a consideration of the next step in the
process of evolution. This is the extension of an
author's rights beyond the boundaries of the country
of which he is a citizen, so that a book formally
registered in one country shall by that single act
and without further formality be protected from
piracy x throughout the world. This great and
needful improvement is now in course of accom-

1 "Piracy" is a term available for popular appeal but perhaps
lacking in scientific precision. The present writer used it in a little
pamphlet on American Authors and British Pirates rather by way of
retort to English taunts. Yet the inexact use of the word indicates
the tendency of public opinion.

346 THE QUESTION OF COPYRIGHT.

plishment ; it is still far from complete, but year
by year it advances farther and farther.

In the beginning the sovereign who granted a
privilege, or at his caprice withheld it, could not,
however strong his good-will, protect his subject's
book beyond the borders of his realm ; and even
when privilege broadened into copyright, a book
duly registered was protected only within the State
wherein the certificate was taken out. Very soon
after Venice accorded the first privilege to John of
Spira, the extension of the protection to the limits
of a single State only was found to be a great dis-
advantage. Printing was invented when central Eu-
rope was divided and subdivided into countless lit-
tle states almost independent, but nominally bound
together in the Holy Roman Empire. What is
now the kingdom of Italy was cut up into more than
a score of separate states, each with its own laws
and its own executive. What is now the German Em-
pire was then a disconnected medley of electorates,
margravates, duchies, and grand-duchies, bishoprics
and principalities, free towns and knight-fees, with
no centre, no head, and no unity of thought or of
feeling or of action. The printer-publisher made an
obvious effort for wider protection when he begged
and obtained a privilege not only from the authori-
ties of the State in which he was working but also
from other sovereigns. Thus, when the Florentine
edition of the Pandects was issued in 1553, the pub-
lisher secured privileges in Florence first, and also
in Spain, in the Two Sicilies, and in France. But
privileges of this sort granted to non-residents were

THE EVOLUTION OF COPYRIGHT. 347

very infrequent, and no really efficacious protection
for the books printed in another State was practically
attainable in this way. Such protection, indeed, was
wholly contrary to the spirit of the times, which
held that an alien had no rights. In France, for
example, a ship wrecked on the coasts was seized by
the feudal lord and retained as his, subject only to
the salvage claim.1 In England a wreck belonged
to the king unless a living being (man, dog, or cat)
escaped alive from it ; and this claim of the crown
to all the property of the unfortunate foreign owner
of the lost ship was raised as late as 1771, when Lord
Mansfield decided against it. When aliens were
thus rudely robbed of their tangible possessions,
without public protest, there was not likely to be
felt any keen sense of wrong at the appropriation
of a possession so intangible as copyright.

What was needed was, first of all, an amelioration
of the feeling toward aliens as such ; and second,
such a federation of the petty states as would make a
single copyright effective throughout a nation, and as
would also make possible an international agreement
for the reciprocal protection of literary property.
Only within the past hundred years or so, has this
consolidation into compact and homogeneous nation-
alities taken place. In the last century, for example,
Ireland had its own laws, and Irish pirates reprinted
at will books covered by English copyright. In the
preface to Sir Charles Grandison, published in 1753,
Richardson, novelist and printer, inveighed against

1 A. C. Bernheim, History of the Law of Aliens (N. Y., 1885),
p. 58.

343 THE QUESTION OF COPYRIGHT.

the piratical customs of the Hibernian publishers. In
Italy, what was published in Rome had no protection
in Naples or Florence. In Germany, where Luther
in his day had protested in vain against the reprint-
ers, Goethe and Schiller were able to make but
little money from their writings, as these were con-
stantly pirated in the other German states, and even
imported into that in which they were protected, to
compete with the author's edition. In 1826, Goethe
announced a complete edition of his works, and, as
a special honor to the poet in his old age, " the
Bundestag undertook to secure him from piracy in
German cities." * With the union of Ireland and
Great Britain, with the accretion about the kingdom
of Sardinia of the other provinces of Italy, with
the compacting of Germany under the hegemony
of Prussia, this inter-provincial piracy has wholly
disappeared within the limits of these national
states.

The suppression of international piracy passes
through three phases. First, the nation whose
citizens are most often despoiled — and this nation
has nearly always been France — endeavors to nego-
tiate reciprocity treaties, by which the writers of
each of the contracting countries may be enabled to
take out copyrights in the other. Thus France had,
prior to 1852, special treaties with Holland, Sardinia,
Portugal, Hanover, and Great Britain. Secondly, a
certain number of nations join in an international
convention, extending to the citizens of all the
copyright advantages that the citizens of each

1 G. H. Lewes, Life and Works of Goethe, p. 545.

THE EVOLUTION OF COPYRIGHT. 349

enjoy at home. Third, a State modifies its own
local copyright law so as to remove the disability of
the alien. This last step was taken by France in
1852; and in 1886 Belgium followed her example.

The French, seeking equity, are willing to do
equity ; they ask no questions as to the nationality
or residence of an author who offers a book for
copyright ; and they do not demand reciprocity as
a condition precedent. Time was when the chief
complaint of French authors was against the Bel-
gian reprinters ; but the Belgians, believing that the
ship of state was ill-manned when she carried pirates
in her crew, first made a treaty with France and
then modified their local law into conformity with
the French. These two nations, one of which was
long the headquarters of piracy, now stand forward
most honorably as the only two which really protect
the full rights of an author.

Most of the states which had special copyright
treaties one with another have adhered to the con-
vention of Berne, finally ratified in 1887. Among
them are France, Belgium, Germany, Spain, Italy,
Great Britain, and Switzerland. The adhesion of
Austro-Hungary, Holland, Norway, and Sweden is
likely not long to be delayed. The result of this
convention is substantially to abolish the distinction
between the subjects of the adhering powers and to
give to the authors of each country the same faculty
of copyright and of stage-right that they enjoy at
home, without any annoying and expensive formali-
ties of registration or deposit in the foreign State.

The United States of America is now the only

350 THE QUESTION OF COPYRIGHT.

one of the great powers of the world which abso-
lutely refuses the protection of its laws to the books
of a friendly alien.1 From having been one of the
foremost states of the world in the evolution of
copyright, the United States has now become one
of the most backward. Nothing could be more
striking than a contrast of the liberality with which
the American law treats the foreign inventor and
the niggardliness with which it treats the foreign
author. In his Popular Government (page 247) the
late Sir Henry Sumner Maine declared that " the
power to grant patents by federal authority has
. . made the American people the first in the
world for the number and ingenuity of the inven-
tions by which it has promoted the ' useful arts ; '
while, on the other hand, the neglect to exercise this
power for the advantage of foreign writers has con-
demned the whole American community to a liter-
ary servitude unparalleled in the history of thought."

1 If a foreign dramatist chooses to keep his play in manuscript,
then the American courts will defend his stage-right ; but the for-
eign dramatist is the only alien author whose literary property is
assured to him by our courts.

November, 1890.

XXI.
LITERARY PROPERTY.

AN HISTORICAL SKETCH.

By Geo. Haven Putnam.

(Originally published in 1884, in Mason and Lalor's Cyclopcedia of
Political Science. )

During the past twenty years there has been a
very considerable increase in the extent of interna-
tional literary exchanges, and a fuller recognition,
at least in Europe, of the propriety and necessity of
bringing these under the control of international
law. Americans also are beginning to appreciate
how largely the intellectual development of their
nation must be affected by all that influences the
development of the national literature, and to rec-
ognize the extent to which such development must
depend upon the inducements extended to literary
producers, as well as upon the character of the com-
petition with which these producers have to contend.

Literary property is defined by Drone as " the
exclusive right of the owner to possess, use, and
dispose of intellectual productions," and copyright
as " the exclusive right of the owner to multiply and
to dispose of copies of an intellectual production."

The English statute (5 and 6 Vict.) defines copy-

352 THE QUESTION OF COPYRIGHT.

right to mean "the sole and exclusive liberty of
printing or otherwise multiplying copies of any
subject to which the word is herein applied."

The American statute (U. S. Rev. Stat., § 4952)
speaks of copyright in a book as " the sole liberty
of printing, reprinting, publishing, . . . and
vending the same."

The French Constitutional Convention adopted,
in January, 1791, a report prepared by Chopelin,
which declares that : La plus sacrS, la plus inatta-
qaable, et, si je puis, parler aiusi, la plus personelle de
toutes les proprietes, est Vouvrage, fruit de la pense'e
d'un ecrivain. And in the decree rendered by the
convention, July 10, 1793, the preamble (written by
Lakanal) declares that de toutes les proprieties, la
moins susceptible de contestation, cest, sans contre'dit,
cclle des productions du ge'nie : et si quelque chose peut
e'tonner, cest qu'il ait fallu reconnaitre cette propriety,
assurer son libre exercice par une loi positive ; cest
qiiune aussi grande revolution que la uotre ait etc
necessaire poiir nous ramener sur ce point, comme sur
tout d'autres, aux simples elements de la justice la
plus commune.

The act relating to copyright, adopted by the
Reichstag of Germany, in April, 1871, declares that
Das Recht, ein Schriftzverk auf mcchanischem Wege
zu vervielfaltigen, steht dcm Urheber desselben aus-
schliesslich zu.

Copinger defines copyright as " the sole and ex-
clusive right of multiplying copies of an original
work or composition," and says that the right of an
author " to the productions of his mental exertions

LITERARY PROPERTY. 353

may be classed among the species of property
acquired by occupancy ; being founded on labor
and invention."

Francis Lieber says (in an address delivered April
6, 1868) : " The main roots of all property whatsoever.
are appropriation and production. . . . Prop-
erty . . . precedes government. If a man ap-
propriates what belongs to no one (for instance, the
trunk of a tree), and if he produces a new thing (for
instance, a canoe) out of that tree, this product is
verily his own, . . . and any one who in turn
attempts to appropriate it without the process of
exchange, is an intruder, a robber. . . . The
whole right of property . . . rests on appropri-
ation and production : and I appeal to the intuitive
conviction of every thinking man to say whether a
literary work, such as Baker's description of his
toilsome journeys, or Goethe's Faust, is not a pro-
duction in the fullest sense of the word, even more
so than a barrel of herrings, which have been appro-
priated in the North Sea, and pickled and barreled
by the fishermen ; and whether any one has a right
to meddle with this property by production, any
more than you or I with the barrel of herrings."

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." It is evident that copyright is in
its nature akin to patent right, which also represents
the legal recognition of the existence of property in

354 THE QUESTION OF COPYRIGHT.

an idea or a group of ideas, or the form of expres-
sion of an idea.

International patent rights have, however, been
recognized and carried into effect more generally
than have copyrights. The patentee of an improved
toothpick would be able to secure to-day a wider
recognition of his right than has been accorded
to the author of Uncle Toms Cabin or of Adam
Bede.

Almost the sole exception to this consensus of
civilized opinion on the status of literary property
is presented by Henry C. Carey. He took the posi-
tion that " Ideas are the common property of man-
kind. Facts are everybody's facts. Words are free
to all men. . . . Examine Macaulay's History
of England ', and you will find that the body is com-
posed of what is common property." Of Prescott,
Bancroft, and Webster he says : " They did nothing
but reproduce ideas that were common property."
Of Scott and Irving, " They made no contribution
to knowledge." (Letters on Copyright, Phila., 1854.)
Therefore, the author of a work has no right of
property in the book he has made. He took the
common stock and worked it over; and one man
has just as good a right to it as another. If the
author is allowed to be the owner of his works, the
public are deprived of their rights. Property in
books is robbery. But this is simply a partial or
specific application of the well-known formula of
Proudhon : " Property is robbery," a theory which
it is not necessary to discuss in this paper.

The conception of literary property was known

LITERARY PROPERTY. 355

to the ancients. A recompense of some sort to the
author was regarded as a natural right, and any
one contravening it as little better than a robber.
Klostermann says: "The first germs of a recogni-
tion of a property in thought are to be found in the
agreements which authors entered into with the
booksellers for the multiplication and sale of copies
of their works, and in the custom to treat as unlawful
any infringement upon the bookseller's right in a
work which had been so transferred to him. The
booksellers among the Romans succeeded, through
the use of slave labor, in producing duplicates of their
manuscripts at so low a cost that the use and pro-
ductions, centuries later, of the first printing presses,
were hardly cheaper." Martial records, in one of
his epigrams, that the edition of his Xenii could
be bought from the bookseller Tryphon for four
sesterces, the equivalent of about twelve and a half
cents. He grumbles at this price as being too high,
and claims that the bookseller would have been able
to get a profit from a charge of half that amount.
This poet appears to have had not less than four
publishers in charge of the sale of his works, one of
whom was a freedman of the second Lucensis. The
latter issued a special pocket edition of the Epigrams.
The poet prepared the advertisements for the book-
sellers, putting these in the form of epigrams, but
not neglecting to specify the form and price of each
book, as well as the place where it was offered for
sale.1 Horace refers to the brothers Sosius as his

'Omnis in hoc gracili xeniorum turba libello
Constabit nummis quatuor cmpta tibi.

356 THE QUESTION OF COPYRIGHT.

publishers, but complains that while his works
brought gold to them, for their author they earned
only fame in distant lands and with posterity.1
Terence sold his EtinncJms to the aediles, and his
Hccyra to the player Roscius ; while Juvenal reports
that Statius would have starved if he had not suc-
ceeded in selling to the actor Paris his tragedy of
Agave. " Such sales," says Coppinger, " were con-
sidered as founded upon natural justice. No man
could possibly have a right to make a profit by the
sale of the works of another without the author's
consent. It would be converting to his own emol-
ument the fruits of another's labor."

It is apparent from these and from similar refer-
ences, that under the Roman Empire authors were in
the habit of transferring to booksellers, for such con-
sideration as they could obtain, the right to duplicate
and to sell their works, and that, under the trade
usages, they were protected in so doing. There

Quatuor est nimium, poterit constare duobus.
Et faciet lucrum bibliopola Tryphon.

(EpigrammatJ, lib. xiii.,ep. 3.)

Qui tecum cupis esse meos ubicunque libellos.
Et comites longse quseris habere viae,
Hos eme quos arcet brevibus membrana tabellis :
Scrinia da magnis, me manus una capit.
*****

Libertum docti Lucensis quare secundi
Limina post Pacis, Palladiumque Forum.

Epigrammata, lib. i. , ep. 3.)

'Hie meret sera liber Sosiis, hie et mare transit,
Et longum noto scriptori prorogat alvum.

{Art. Poet., 345.)

LITERARY PROPERTY. 357

was no imperial act covering such transfers, and it
does not appear that in any division of the Roman
law was there provision for the exclusive right in
the " copy " of literary material.

It is nevertheless the case that the Roman jurists
interested themselves in the question of immaterial
property, but it was apparently rather as a theo-
retical speculation than as a study in practical law.
Some of the earlier discussions as to the nature of
property in ideas appear to have turned upon the
question as to whether such property should take
precedence over that in the material which happened
to be made use of for the expression of the ideas.
The disciples of Proculus maintained that the occu-
pation of alien material, so as to make of it a new
thing, gave a property right to him who had so
reworked or reshaped it ; while the school of Sabinus
insisted that the ownership in the material must
carry with it the title to whatever was produced
upon the material. Justinian, following the opinion
of Gaius, took a middle ground, pointing out that
the decision must be influenced by the possibility of
restoring the material to its original form, and more
particularly by the question as to whether the
material, or that which had been produced upon
it, was the more essential. This opinion of Gaius
appears to have had reference to the ownership of a
certain table upon which a picture had been painted,
and the decision was in favor of the artist. This
decision contains an unmistakable recognition of
immaterial property, not, to be sure, in the sense of
a right to exclusive reproduction, but in the par-

358 THE QUESTION OF COPYRIGHT.

ticular application that, while material property
depends upon the substance, immaterial property,
that is to say. property in ideas, depends upon the
form.

For the centuries following the destruction of the
Roman Empire, during which literary undertakings
were confined almost entirely to the monasteries, the
Roman usage, under which authors could dispose
of their works to booksellers, and the latter could
be secured control of the property purchases, was
entirely forgotten. No limitation was placed on
the duplication of works of literature. According
to YVachter (Das Verlagsrecktt 1857), it was even the
case that by a statute of the University of Paris,
issued in 1223, the Parisian booksellers (who were
in large part dependent upon the university) were
enjoined to extend, as far as practicable, the dupli-
cation of works of a certain class. The business of
bookseller at that time consisted as much in the rent-
ing out for reading and copying of authentic manu-
script versions as in the sale of manuscript copies. In
the University of Paris, as well as in that of Bologna,
a statute specified the least number of copies,
usually 120, of a manuscript that a bookseller must
keep in stock, and the prices for loaning manuscripts
were also fixed by statute. The difficulty and
expense attending the reproduction of manuscripts
was in every case considerable (much greater than
in the early days of the Roman Empire), and when,
therefore, an author desired to secure a wide circu-
lation for his work, he came to regard the reproduc-
tion of copies not as a reserved right and source of

LITERARY PROPERTY. 359

income, but as a service to himself, which he was
very ready to facilitate, and even to compensate.

Throughout the middle ages, whatever immaterial
property in the realms of science, art, or technics
obtained recognition and protection, was held in
ownership, not by individuals, but by churches,
monasteries, or universities. Before the invention
of printing, the writers of the middle ages were
fortunate if, without a ruinous expenditure, they
could succeed in getting their productions before
the public. The printing-press brought with it the
possibility of a compensation for literary labor.
Very speedily, however, the unrestricted rivalry of
printers brought into existence competing and
unauthorized editions, which diminished the pros-
pects of profit, or entailed loss for the authors,
editors, and printers of the original issue, and thus
discouraged further similar undertakings.

As there was no general enactment under which
the difficulty could be met, protection for the
authors and their representatives was sought through
special " privileges," obtained for separate works as
issued. The earliest privilege of the kind was,
according to Putter (Beitrdge sum deutschen Staats-
und Fiirstenrecht), that conceded by the republic
of Venice, January 3, 1491, to the jurist Peter of
Ravenna, securing to him, and to the publishers
selected by him, the exclusive right for the printing
and sale of his work, PJitznix. No term of years
appears to have been named in this " privilege." It
appears, however, that most of the early Italian
enactments in regard to literature were framed, not

360 THE QUESTION OF COPYRIGHT.

so much with reference to the protection of authors,
as for the purpose of inducing printers (acting also
as publishers) to undertake certain literary enter-
prises which were believed to be of importance to
the community.

The republic of Venice, the dukes of Florence,
and Leo X. and other popes conceded at different
times to certain printers the exclusive privilege of
printing, for specified terms — rarely, apparently,
exceeding fourteen years — editions of certain classic
authors. At this time, when the business of the
production and the distribution of books was in its
infancy, such undertakings must have been attended
with exceptional risk, and have called for no little
enlightened enterprise on the part of the printers.
It is fair to assume that the princes conceding these
privileges were not interested in securing profits
for the printers, but had in mind simply the en-
couragement, for the benefit of the community, of
literary ventures on the part of the editors and
printers.

After Italy, it is in France that we find the next
formal recognition, on the part of the government,
of the rights of property in literature. From the
reign of Louis XII. to the beginning of the sixteenth
century it became usage for the publisher (at that
time identical with the printer), before undertak-
ing the publication of a work, to obtain from the
king an authorization, or letters patent, the term
of which appears to have varied according to the
nature of the work and the mood of the monarch
or of the advising ministers. At the close of nearly

LITERARY PROPERTY. 361

all of the volumes issued previous to the Revolution
will be found printed : Les Lettres du Rol, addressed,
A nos antes ct feanx conseillers, les gens tenons nos
coars de Par lenient . . . et autres nos justiciers,
et qui font defenses a tons libr aires et impr linear s ct
autres personnes de quelque qualite' et condition qiielles
solent, d'lntrodulre aucun Impression ctrangere (that
is to say, any unauthorized reprint) dans aucun lieu
de notre obeissance.

These letters were in the first place obtained, as
in Italy, for the protection of special editions of the
classics, but very speedily the native literature
increased in importance, and the list of original
works came to outnumber that of the reprints of
ancient authors. The rights specified in the letters
were, in the first place, nearly always vested in the
printers, but it is evident that the longer the terms
of the royal concessions the larger the remunera-
tion that could be looked for from the work, and
the greater the price that the printer would be in a
position to pay to author or writer. It is also to be
noted that the terms granted to original French
works were usually longer than those for the new
editions of the classics or of reprints of devotional
works.

According to Lowndes, the penalties for infring-
ing copyright were, until the Revolution, heavier
in France than anywhere else in Europe. It
was argued that such infringement constituted a
worse crime than the stealing of goods from the
house of a neighbor, for in the latter case some
negligence might possibly be imputed to the owner,

362 THE QUESTION OF COPYRIGHT.

while in the former it was stealing what had been
confided to the public honor.

The status of literary property was further recog-
nized and defined by the so-called Ordinances de
Moulins of Henry II., in 1556, the declaration of
Charles IX., in 1571, and the letters patent of
Henry III., in 1576, but the character of the meth-
ods of granting and defending copyrights was not
changed in any material respects.

By the decree of the National Assembly of August
4, 1789, all the privileges afforded to authors and
owners of literary property by the various royal
edicts were repealed. In July, 1793, the first general
Copyright Act was passed, under which protection
was conceded to the author for his life, and to his
heirs and assigns for ten years thereafter.

The imperial Act of 18 10 extended the term to
twenty years after the author's death, for widow or
children, the term remaining at ten years if the
heirs were further removed. In 1872 the act now
(1883) in force was passed. Under this the term
was extended to fifty years from the death of
the author. The provisions of the act were
also extended to the colonies. Foreigners and
Frenchmen enjoy the right equally, and no restric-
tion is made as to the authors being residents at the
time the copyright is taken out. It is, further, not
necessary that the first publication of the work
should be made in France. In case the work be
first published abroad, French copyright may subse-
quently be secured by depositing two copies at the
Ministry of the Interior in Paris, or with the secre-

LITERARY PROPERTY. 363

tary of the prefecture in the departments. The
provisions of the statute affecting foreigners may
be modified by any convention concluded between
France and a foreign country.

The earliest German enactment in regard to
literary property was the " privilege " accorded in
Nuremberg, in 1501, to the poet Conrad Celtes, for
the works of the poet Hrosvvista (Helena von Ros-
sow, a nun of the Benedictine cloister of Garders-
heim). As this author had been dead for 600 years,
the privilege was evidently not issued for her protec-
tion, but must rather have been based upon the
idea of encouraging Celtes in a praiseworthy (and
probably unremunerative) undertaking. Between the
years 15 10 and 15 14 we find record of "privileges"
issued by the Emperor Maximilian in favor of the
sermons of Geiler of Kaisersberg, and the writings
of Schottius, Stabius, and others. In 1534 Luther's
translation of the Bible was issued in Wittenberg
under the protection of the " privilege " of the
Elector of Saxony.

Penalties for piratical reprints were sometimes
specified in the special "privileges," but from 1660
we find certain general acts under which privileged
works could obtain protection, and their owners
could secure against reprinters uniform penalties.
Decrees of this class were issued by the city of
Frankfort in 1657, 1660, and 1775, by Nuremberg
in 1623, by the electorate of Saxony in 1661, and by
the imperial government in 1646. There were also
enactments in Hanover in 1778, and in Austria in
1795. All of the above specified acts expressly per-

3^4 THE QUESTION OF COPYRIGHT.

mitted the reprinting of " foreign " works, that is,
of works issued outside of the domain covered by
the enactment. Piratical reprinting between the
different German states increased, therefore, with
the growth of the literature, and although the
injury and injustice caused by it were recognized,
and measures for its suppression were promised by
the emperors Leopold II. and Francis II. (1790 and
1792), nothing in this direction could be accom-
plished by the unwieldy imperial machinery.

In 1794 legislation was inaugurated in the Prus-
sian parliament, which was accepted by the other
states of Germany (excepting Wurtemberg and
Mecklenburg), under which all German authors and
foreign authors whose works were represented by
publishers taking part in the book fairs in Frankfort
and Leipzig were protected throughout the states
of Germany against unauthorized reprints.

According to Klostermann, these enactments
were only in small part effective, and it was not
until forty years later that, under the later acts of
the new German confederacy, German authors were
able to secure throughout Germany a satisfactory
protection. It is, nevertheless, the case that to
those who framed the Berlin enactment of 1794
must be given the credit of the first steps toward
the practical recognition of international copyright.

The copyright statute now in force in Germany,
including Elsass and Lothringen, dates from 1871.
The term is for the life of the author and for thirty
years thereafter. The copyright registry for the
empire is kept at Leipzig. The protection of the

LITERARY PROPERTY. 365

law is afforded to the works of citizens, whether
published inside or outside of the empire, and also
to works of aliens, if these are published by a firm
doing business within the empire.

In Italy, literary copyright rests upon the statute
of 1865. The term is for the life of the author and
for forty years after his death, or for eighty years
from the publication of the work. After the ex-
piration of the first forty years, however, or after
the death of the author, in case this does not take
place until more than forty years have elapsed since
the publication, the work is open to publication by
any one who will pay to the author of the copyright
a royalty of five per cent, of the published price. It
is necessary to deposit two copies of the work, to-
gether with a declaration in duplicate, at the pre-
fecture of the province. No distinction is made be-
tween citizens and aliens, and the provisions of the
law are applicable to the authors of works first pub-
lished in any foreign country, between which and
Italy there is no copyright treaty.

In Austria, the term of literary copyright is for
thirty years after the author's death, and the other
provisions of the act in force are similar to those of
the German statute.

In Holland and Belgium, copyright, formerly per-
petual, is now limited to the life of the author and
twenty years thereafter.

In Denmark, copyright, formerly perpetual, is now
limited to thirty years from the date of publication.

In Sweden, copyright was also, until recently,
perpetual. By the Act of 1877, however, it now en-

366 THE QUESTION OF COPYRIGHT.

dures for the life of the author, and for fifty years
thereafter. The provisions of the law are made ap-
plicable to the works of foreign authors only on
condition of reciprocity.

In Spain, copyright rests on the Act of 1878, and
endures during the life of the author and for eighty
years thereafter. If the right be assigned by the
author and the author leave no heirs, it belongs to the
assignees for eighty years from the author's death.
In the case, however, of heirs being left by the au-
thor, the assignment holds good for but twenty-five
years, after which the ownership reverts to the heirs
for the remaining fifty-five years of the term. Owners
of foreign works will retain their rights in Spain,
provided they adhere to the law of their own coun-
try. The copyright registry is kept at the Ministry
of the Interior, and, to perfect the registry, a deposit
of three copies of the work is required. The Span-
ish government is authorized to conclude copyright
treaties with foreign countries on the condition of
complete reciprocity between the contracting par-
ties. Under such an arrangement any author, or
his representative, who has legally secured copyright
in the one country, would be, without further for-
malities, entitled to enjoy it in the other.

In Russia, copyright endures for the life of the
author and for fifty years thereafter.

In Greece, the term is fifteen years from publica-
tion.

In Japan the law of copyright dates from 1874.
Manuscript must be examined by the Department
of the Interior, and if found free from disloyal

LITERARY PROPERTY. 367

opinions or any matter calculated to injure public
morals, a certificate of protection is promptly issued.
Three copies of the work must be deposited in the
department, and the fees amount to the value of
six more copies.

In China, notwithstanding the large body of na-
tional literature, no laws have been enacted for the
protection of literary property.

In Great Britain, the Act of 1842, now (1883) m
force, provides as follows : Copyright in a book en-
dures for forty-two years from the date of publica-
tion, or for the author's life, and for seven years
after, whichever of these two terms may be the
longer. The first publication of the work must be
in Great Britain. The copy can be taken out by
any author or owner who is a British citizen, or by
an alien who may at the time of the first publication
be within the British dominions (in any portion of
the British Empire). The work must be registered
in the records of the Stationers' Company, and five
copies must be delivered to certain institutions
specified. A bill is now, however, before Parliament,
framed mainly upon the recommendations of the
Copyright Commission of 1878, which provides that
the term of copyright for books shall be fifty years;
that in the case of British subjects copyright ex-
tends to all the British dominions; that aliens,
wherever resident, shall be entitled to British copy-
right on registering their work in that part of the
British dominions where it v/as first published.

The history of the status of literary property in
England prior to 1863 is given in detail in the ar-

368 THE QUESTION OF COPYRIGHT.

tide of Mr. Macleod (vol. i., p. 642). It is in Eng-
land that the nature and basis of copyright have
received the most thorough consideration, and the
English opinions (although representing very wide
differences among themselves) have been the most
important contributions to the discussion of the
subject. It is sufficient to note here that the first
record of the recognition of property in literature
appears in 1558 (that is, half a century later than
in France or Germany), when the earliest entry of
titles was made on the register of the Company of
Stationers in London. As early as 1534, however,
Henry VIII. granted to the University of Cambridge
the exclusive right of printing certain books in
which the crown claimed a prerogative. Afterward,
patents aim privilegio were granted to individuals.
Prior to 17 10 there was no legislation creating
literary property or confining ownership, nor any
abridging its perpetuity or restricting its enjoyment.
It was understood, therefore, to owe its existence to
common law, and this conclusion, arrived at by the
weightiest authorities, remained practically unques-
tioned until 1774. For the provisions of the Act of
1710 (8 Anne), the details of the cases of Miller vs.
Taylor (1769), and Donaldson vs. Becket (1774), the
discussions concerning these cases, with the opinions
of Lord Mansfield, Lord Camden, and Justice Yates,
and also for the debate attending the framing of
the Act of 1842, with the arguments of Talfourd,
Lord Campbell, Justice Coleridge, Lord Macaulay,
and Thomas Hood, the reader is referred to Mr.
Macleod's paper.

LITERARY PROPERTY. 369

In the United States, the first act in regard to
copyright was passed in Connecticut in January,
1783. This was followed by the Massachusetts act
of March, 1783, that of Virginia in 1785, and New
York and New Jersey in 1786. These acts were due
more particularly to the efforts of Noah Webster,
and their first service was the protection of his fa-
mous Speller. Webster journeyed from State capital
to State capital, to urge upon governors and legis-
latures the immediate necessity of copyright laws,
and under his persistency measures had also been
promised, and in part framed, in Rhode Island,
Pennsylvania, Delaware, Maryland, and South Caro-
lina. The necessity for State laws on the subject
was, however, obviated by the United States
statute of 1790. In creating a public and legis-
lative opinion which made such a law possible,
Webster's writings and personal influence were all-
important.

Previous to the adoption of the Federal Constitu-
tion, in 1787, a general copyright law was not within
the province of the central government, and in
order to encourage the States in the framing of
copyright legislation, a resolution, proposed by
Madison, was adopted in Congress in May, 1783,
recommending to the States the adoption of laws
securing copyright for a term of not less than four-
teen years. The State acts passed prior to this
resolution had conceded a term of twenty-one years.
The Act of 1790 provided for the shorter time sug-
gested by Madison. The Act of 183 1 extended the
fourteen years to twenty-eight, with privilege to the

S70 THE QUESTION OF COPYRIGHT.

author, his widow, or children, of renewal for fourteen
years more. The act of 1834 provided that all deeds
for the transferor assignment of copyright should be
recorded in the office in which the original entry had
been made. In 1846, the act establishing the Smith-
sonian Institution required that one copy of the
work copyrighted should be delivered to that insti-
tution, and one copy to the Library of Congress.
This provision was repealed in 1859, by a statute
which transferred to the Department of the Interior
the custody of the publications and records. In
1865 the copies were again ordered to be delivered
to the Library of Congress. In ie 61 an act was
passed, providing that cases of copyright could,
without regard to the amount involved, be appealed
to the Supreme Court.

The act now in force in the United States is that
of July, 1870 (see Rev. Stat., §§ 4948-4971). This
provides that the business of copyrights shall be
under charge of the Librarian of Congress; that copy-
rights may be secured by any citizen of the United
States or resident therein ; that the term of copy-
right shall be twenty-eight years, with the privilege
of renewal for the further term of fourteen years by
the author, if he be still living, and continues to be
a citizen or a resident, or by his widow or children,
if he be dead ; that two copies of the work shall be
deposited in the Library of Congress ; that the work
must first be published in the United States, and
that the original jurisdiction of all suits under the
copyright laws shall rest with the United States
Circuit Courts.

LITERARY PROPERTY. 37 1

Under the present interpretation of the courts
in both the United States and Europe, copyright
in published works exists only by virtue of the
statutes defining (or establishing) it, while in works
that have not been published, such as compositions
prepared exclusively for dramatic representation,
the copyright obtains through the common law.
Copyright by statute is of necessity limited to the
term of years specified in the enactment, while
copyright at common law has been held to be per-
petual. The leading English decisions have before
been referred to. The United States decision,
which still serves as a precedent on the point of
the statutory limitation of copyright, is that of the
United States Supreme Court in 1834, in the case of
Wheaton vs. Peters. This decision involved the
purport of the United States law of 1790, and the
determination of the same question that had been
decided by the House of Lords in 1774, viz.,
whether copyright in a published work existed by
the common law, and, if so, whether it had been
taken away by statute. The court held that the
law had been settled in England, the act of 8 Anne
having taken away any right previously existing at
common law ; that there was no common law of the
United States ; and that the copyright statute of
1790 did not affirm a right already in existence, but
created one. Justices Thompson and Baldwin, in
opposing the decision of the four justices concurring
in the decision, took the ground that the common
law of England did prevail in the United States,
and that copyright at common law had been fully

372 THE QUESTION OF COPYRIGHT.

recognized ; and that, even if it were admitted that
such copyright had been abrogated in England by
the statute of Anne, such statute had, of course, no
effect either in the colonies or in the United States.
" These considerations," says Drone, " deprive
Wheaton vs. Peters of much of its weight as an
authority." In 1880, in the case of Putnam vs.
Pollard, it was claimed by the plaintiff that the
decision in Wheaton vs. Peters could in any case
only make a precedent for Pennsylvania ; that the
English common law obtained in the State of New
York, and could not have been affected by the
statute of Anne ; but the New York Supreme
Court decided that Wheaton vs. Peters consti-
tuted a valid precedent.

What may be the Subject of Copyright. In order
to acquire a copyright in a work, it is necessary that
it should be original. The originality can, however,
consist in the form or arrangement as well as in
the substance. Corrections and additions to an old
work, not the property of the compiler, can also
secure copyright. The copyright of private letters,
forming literary compositions, is in the composer
and not in the receiver. (Oliver vs. Oliver, Percival
vs. Phipps et ah, Story's Com)

The English statute, 5 and 6 Vict., defines
" book " " to mean and include every volume, part
or division of a volume, pamphlet, sheet of letter-
press, sheet of music, map, chart, or plan separately
published." The right of property in lectures,
whether written or oral, is now confirmed by stat-
ute, the most important English decision on the

LITERARY PROPERTY. Z7?>

point being that of Abernethy vs. Hutchinson, and
American precedents being Bartlett vs. Crittenden,
Keene vs. Kimball, and Putnam vs. Meyer. Copy-
right can be secured for original arrangements of
common material or novel presentations of familiar
facts. In Putnam vs. Meyer the New York Supreme
Court held that certain tabular lists of anatomical
names, arranged in a peculiar and arbitrary manner
for the purpose of facilitating the work of memo-
rizing, were entitled to protection.

Abridgments and abstracts, which can be called
genuine and just, are also entitled to copyright.
(Lawrence vs. Dana, Gray vs. Russell et al.) Ac-
cording to English precedent, copyright cannot
exist in a work of libelous, immoral, obscene, or irre-
ligious tendency. There is no record in the United
States of a case in which the question of copyright
in irreligious books has been considered. Drone
points out that the uniform construction of the law
relating to blasphemy is evidence of the large free-
dom of inquiry and discussion allowed in religious
matters. On this point the opinion of Justice
Cooley (People vs. Ruggles, 8 Johns. Rep., N. Y.)
is worth citing : " It does not follow because blas-
phemy is punishable as a crime, that therefore one
is not at liberty to dispute and argue against the
truth of the Christian religion, or of any accepted
dogma. Its ' divine origin and truth ' are not so far
admitted in the law as to preclude their being con-
troverted. To forbid discussions on this subject,
except by the various sects of believers, would be to
abridge the liberty of speech and of the press on a

374 THE QUESTION OF COPYRIGHT.

point which, with many, would be regarded as the
most important of all." In quoting a similar opin-
ion of Justice Story, Drone concludes that "there
appears to be no good reason why valid copyright
will not rest in a publication in which are denied any
or all of the doctrines of the Bible; provided the
motives and manner of the author be such as not
to warrant the finding of a case of blasphemy or
immorality."

Several of the questions concerning the status
and the defence of literary property in this country
are only now beginning to come into discussion.
The literature of the country is still so young that
as yet but a small portion of it has survived the
statute term of copyright. From the present time,
however, as the terms of works which have estab-
lished a position as classics begin in part or in whole
to expire, we can look forward to a larger number
of issues and of suits connected with alleged in-
fringements of copyright.

The case of Putnam vs. Pollard, decided in the
New York Supreme Court in 1881, covered some
points that appear to have not before received con-
sideration. The defendants had reprinted some
fragmentary and unrevised portions of the works of
Washington Irving, on which the copyright had
expired, and offered these for sale under the desig-
nation of Irving s Works. The plaintiff had for a
number of years used this title to describe the au-
thorized, complete, and revised writings of this
author, in the shape in which he had finally pre-
pared them for posterity. The plaintiff sought to

LITERARY PROPERTY. 375

enjoin the sale, under the above title, of the frag-
mentary work, on the several grounds that it misled
the public, caused injury to the literary reputation
of Irving, and interfered with the property rights of
Irving's heirs. The courts decided, however, that
as long as the volumes in question contained noth-
ing but material which had actually been written by
Irving, it was not unlawful to designate them as
Irving's Works, even though the writings should
not be complete or in their final form ; and the
injunction was denied. The question involved was,
it will be noted, one of trade-mark, and the decision
took the ground that an author's name, combined
with the term " works," does not constitute a trade-
mark. Under this ruling, it might be proper to add
to the title-pages of volumes of " fragments" sold
as " works," the caution " Caveat emptor"

The four theories which have resulted from this dis-
cussion of a century are thus summarized by Drone:
I. That intellectual productions constitute a species
of property founded in natural law, recognized by
the common law, and neither lost by publication
nor taken away by legislation. 2. That an author
has, by common law, an exclusive right to control
his works before, and not after, publication. 3. That
this right is not lost by publication, but has been
destroyed by statute. 4. That copyright is a mo-
nopoly of limited duration, created and wholly
regulated by the legislature, and that an author
has, therefore, no other title to his published works
than that given by statute.

The first country to take action in regard to in-

3?6 THE QUESTION OF COPYRIGHT.

ternational copyright was Prussia, which, in 1836,
passed an act conceding the protection of the Prus-
sian statute to the writers of every country which
should grant reciprocity. In 1837 a copyright con-
vention was concluded between the different mem-
bers of the German confederation.

This was followed by the English Act of 1838, 1
and 2 Vict., c. 59, amended and extended by 15
Vict., c. 12. This act provided that her majesty
might, by order in council, grant the privilege of
copyright to authors of books, etc., first published
in any foreign country to be named in such order,
provided always that " due protection had been se-
cured by the foreign power so named in such order
in council, for the benefit of parties interested in
works first published in the British dominions."

Different provisions may be made in the arrange-
ments with different countries. Under the general
Copyright Act, no right of property is recognized in
any book, etc., not first published in her majesty's
dominions. Hence, British as well as foreign au-
thors, first publishing abroad, have no protection in
Great Britain unless a convention has been framed,
under the International Copyright Act, between
Great Britain and the country in which the publi-
cation is made. It may be noted here that the
condition of " first publication," which obtains in
the statutes of nearly all countries, has been held to
be complied with by a simultaneous publication in
two or more countries.

Under this International Copyright Act, Great
Britain has entered into copyright conventions with

LITERARY PROPERTY. 377

the following countries: with Saxony, in 1846;
France, in 1851 ; Prussia, in 1855; states of Ger-
many comprised in the German empire : Anhalt,
in 1853; Brunswick, in 1849; Hamburg, in 1853;
Hanover, in 1847; Oldenburg, in 1847; Hesse-
Darmstadt, in 1862 ; Thuringian Union, in 1847.
(It is not clear what effect the absorption of these
states into the empire may have had upon their
several copyright treaties.) With Spain, in 1857
(temporarily renewed in 1880); Belgium, in 1855;
and Sardinia, in 1862 (confirmed in 1867 by the
kingdom of Italy).

The conventions with the several German states
contain essentially identical provisions, which are as
follows : The author of any book to whom the
laws of either state (English or German) give copy-
right, shall be entitled to exercise that right in the
other of such states, for the same term to which an
author of a similar work would be entitled if it were
first published in such other state. The authors of
each state shall enjoy in the other the same protec-
tion against piracy and unauthorized republication,
and shall have the same remedies before courts of
justice, as the law affords to the domestic authors.
Translators are protected against a piracy of their
translation, but acquire no exclusive right to trans-
late a work except in the following case : the
author who notifies on the title-page of his book
his intention of reserving the right of translation,
will, during five years from the first publication of
the book, be entitled to protection, in the treaty
state, from the publication of any translation not

3/8 THE QUESTION OF COPYRIGHT.

authorized by him. In order, however, to secure
this protection, the author must, within three
months of the first publication of his book, register
the title and deposit a copy in the proper office in
the treaty state ; part of the authorized translation
must appear within a year, and the whole of it
within three years of the deposit and registration of
the original ; and the translation must itself be duly
registered and deposited. When a work is issued in
parts, each part shall be treated as a separate book ;
but notice of the reservation of the right of transla-
tion need be printed only on the first page. The
importation into either of the two states of unau-
thorized copies of works protected by the conven-
tion is forbidden. A certified copy of the entry in
the registry of either state shall prima facie confer
an exclusive right of republication within such state.

The provisions of the existing conventions be-
tween England and France, Spain, Belgium, and
Italy, are essentially identical with those of the
German treaty. The continental book, on the title-
page of which has been duly printed the announce-
ment of the reservation of the right of translation,
must be duly registered at Stationers' Hall, London.
The English work must be registered for France at
the Bureau de la Librairie of the Ministry of the In-
terior, in Paris, and for Spain and Belgium at the
corresponding offices in Madrid and Brussels.

The provisions of the treaty between Spain and
France, which is based upon the Spanish Copyright
Act of 1878, have, in the main, been followed in the
conventions between Spain and Italy, Spain and

LITERARY PROPERTY. 379

Portugal, France and Italy, etc. They are as fol-
lows: i. Complete reciprocity between the con-
tracting parties. 2. Treatment of each nation by
the other as the most favored nation. 3. Any au-
thor or his representative who has legally secured
copyright in the one country, to enjoy it forthwith
in the other, without further formalities. 4. The
prohibition in each country of the printing, selling,
importation or exportation of works in the language
of the other country, without the consent of the
owners of the copyright therein.

The copyright treaty between France and Ger-
many, as framed in 1883, is a step in advance in
many ways. By Article 10, authors of the two
countries are spared all formalities of registration,
and the appearance of the writer's name on the title-
page is to be considered sufficient proof of his
rights, unless the contrary is proved. In the case
of anonymous or pseudonymous works the publisher
will be regarded as the author's representative.
The knotty point of the right of translation has
been solved by a compromise. The necessity to
print a reserve of the right of translation on the
book is abolished, as is the registration of transla-
tions. The author is to retain his right of transla-
tion for ten years, instead of the five hitherto
allowed. When a work is issued in parts, the ten
years are to be counted from the issue of the last
part. Books and acting plays are put on the same
footing ; and the treaty will apply to works already
published.

An international literary association was organ-

380 THE QUESTION OF COPYRIGHT.

ized some years ago, with Victor Hugo as its first
president, and has been of service in calling atten-
tion to defects in existing enactments and conven-
tions for the protection of property in literature.
It has recently called special attention to the ex-
ceptional position occupied by the United States
toward the literature of other countries.

Between no two countries has the exchange of
literary productions been so considerable or so im-
portant as between Great Britain and the United
States. The interests of authors, of readers, of pub-
lishers, of national literature and of national moral-
ity, have alike demanded that the exchange should
be placed under international regulation, and that
this extensive use by the public of each country of
the literature of the other should be conditioned
upon an adequate acknowledgment of the rights.of
the producers of such literature.

It is a disgrace that the two great English-speak-
ing people, claiming to stand among the most en-
lightened of the community of nations, should be
practically the only members of such community
which have failed to arrive at an agreement in this
all-important international issue ; and it is mortify-
ing for an American to be obliged to admit that the
responsibility for such failure must, in the main, rest
with the United States.

The reproduction of British literature in this
country has, during the past century, been much
more considerable than that of American literature
in Great Britain, and the direct loss to the English
authors, through the want of an assured and legal-

LITERARY PROPERTY. 38 1

ized remuneration from the American editions of
their works, has therefore been greater than the cor-
responding direct loss to American authors. For
this and for other reasons, the suggestions and prop-
ositions for an international arrangement have been
more frequent and more pressing on the part of
England. And although it is certainly true, that
from an early date the rightfulness and desirability
of an international copyright have been maintained
in this country, not only by authors, but by lead-
ing publishers and many others who have given
thought and labor to the matter, it is nevertheless
the case that the views of these advocates of a
measure have not as yet been successful in securing
the legislation required to change the national policy.
This policy still persistently refuses to recognize the
rights of any alien writers, and, through such refusal,
continues to inflict a grievous and indefensible wrong,
not only upon such alien writers, but also upon the
authors and the literature of our own country.

The history of the efforts made in this country to
secure international copyright is not a long one.
The attempts have been few, and have been lacking
in organization and in unanimity of opinion, and
they have for the most part been made with but
little apparent expectation of any immediate suc-
cess. Those interested seem to have nearly always
felt that popular opinion was, on the whole, against
them, and that progress could be hoped for only
through the slow process of building up by educa-
tion and discussion a more enlightened public under-
standing.

382 THE QUESTION OF COPYRIGHT.

In 1838, after the passing of the first International
Copyright Act in Great Britain, Lord Palmerston in-
vited the American government to co-operate in
establishing a copyright convention between the
two countries. In the year previous, Henry Clay,
as chairman of the joint Library Committee, had re-
ported to the Senate very strongly in favor of such
a convention, taking the ground that the author's
right of property in his work is similar to that of the
inventor in his patent. This is a logical position for
a protectionist, interested in the rights of labor, to
have taken, and the advocates of the so-called pro-
tective system, who call themselves the followers of
Henry Clay, but who are to-day opposed to any full
recognition of authors' rights, would do well to bear
in mind this opinion of their ablest leader.

No action was taken in regard to Mr. Clay's re-
port or Lord Palmerston's proposal. In 1840 Mr.
G. P. Putnam issued in pamphlet form An Argu-
ment in Behalf of International Copyright, the first
publication on this subject in the United States of
which we find record. It was prepared by himself
and Dr. Francis Lieber. In 1843 Mr. Putnam ob-
tained the signatures of ninety-seven publishers,
printers, and binders to a petition he had prepared,
which was duly presented to Congress. It took the
broad ground that the absence of an international
copyright was " alike injurious to the business of
publishing and to the best interests of the people at
large." A memorial, originating in Philadelphia,
was presented the same year, in opposition to
this petition, setting forth, among other consider-

LITERARY PROPERTY. 383

ations, that an international copyright would pre-
vent the adaptation of English books to American
wants.

In the report made by Mr. Baldwin to Congress
twenty-five years later, he remarks that " the muti-
lation and reconstruction of American books to suit
English wants are common to a shameless extent."

In 1853 the question of a copyright convention
with Great Britain was again under discussion, the
measure being favored by Mr. Everett, at that time
Secretary of State. A treaty was negotiated by
him, in conjunction with Mr. John F. Crampton,
minister in London, which provided simply that all
authors, artists, composers, etc., who were entitled
to copyright in one country, should be entitled to
it in the other on the same terms and for the same
length of time. The treaty was reported favorably
from the Committee on Foreign Relations, but was
laid upon the table in the Committee of the Whole.
While this measure was under discussion, five of the
leading publishing houses in New York addressed a
letter to Mr. Everett, in which, while favoring a con-
vention, they advised: 1. That the foreign author
must be required to register the title of his work in
the United States before its publication abroad.
2. That the work, to secure protection, must be
issued in the United States within thirty days of its
publication abroad ; and 3. That the reprint must
be wholly manufactured in the United States.

In 1853 Henry C. Carey published his Letters on
International Copyright, in which he took the ground
that the facts and ideas in a literary production are

384 THE QUESTION OF COPYRIGHT.

the common property of society, and that property
in copyright is indefensible.

In 1858 a bill was introduced into the House of
Representatives by Mr. Morris, of Pennsylvania,
providing for international copyright on the basis
of an entire remanufacture of the foreign work, and
its reissue by an American publisher within thirty
days of its publication abroad. This bill does not
appear to have received any consideration.

In March, 1868, a circular letter, headed "Justice
to Authors and Artists," was issued by a committee
composed of George P. Putnam, S. Irenaeus Prime,
Henry Ivison, James Parton, and Egbert Hazard,
calling together a meeting for the consideration of
the subject of international copyright. The meet-
ing was held on the 9th of April, Mr. Bryant pre-
siding, and a society was organized under the title
of the "Copyright Association for the Protection
and Advancement of Literature and Art," of which
Mr. Bryant was made president, and E. C. Stedman
secretary. The primary object of the association
was stated to be " to promote the enactment of a
just and suitable international copyright law for
the benefit of authors and artists in all parts of the
world." A memorial had been prepared by the
above-mentioned committee to be presented to Con-
gress, which requested Congress to give its early
attention to the passage of a bill, " To secure in all
parts of the world the right of authors," but which
made no recommendations as to the details of any
measure. Of the 153 signatures attached to this me-
morial, 101 were those of authors, and 19 of publishers.

LITERARY PROPERTY. 385

In the fall of 1868 Mr. J. D. Baldwin, member of
the House from Massachusetts, reported a bill, the
provisions of which had in the main received the
approval of the Copyright Association, which pro-
vided that a foreign work could secure a copyright
in this country, provided it was wholly manufactured
here and should be issued for sale by a publisher
who was an American citizen. The bill was recom-
mitted to the joint Committee on the Library, and
no action was taken upon it. Mr. Baldwin was of
opinion that an important cause for the shelving of
the measure without debate was the impeachment
of President Johnson, which was at that time ab-
sorbing the attention of Congress and the country.
No general expression of opinion was, therefore,
elicited upon the question from either Congress or
the public, and even up to this date (June, 1883)
the question has never reached such a stage as to
enable an expression of public opinion to be fairly
arrived at. In 1871 Mr. Cox, of New York, intro-
duced a bill which was practically identical with Mr.
Baldwin's measure, and which was also recommitted
to the Library Committee.

In 1870 a copyright convention was proposed by
Lord Clarendon, which called forth some discussion,
but concerning which no action was taken on the
part of the American government until 1872.

In 1872 the new Library Committee called upon
the authors, publishers, and others interested to
assist in framing a bill. At a meeting of the pub-
lishers, held in New York, a majority of the firms

present were in favor of the provision of Mr. Cox's

386 THE QUESTION OF COPYRIGHT.

bill. The report was, however, dissented from by
a large minority, on the ground that the bill was
drawn in the interests of the publishers rather than
that of the public ; that the prohibition of the use
of foreign stereotypes and electrotypes of illustra-
tions was an economic absurdity, and that an English
publishing house could, in any case, through an Amer-
ican partner, retain control of the American market.
During the same week a bill was drafted by C. A.
Bristed, representing more particularly the views of
the authors in the Copyright Association, which pro-
vided simply that all rights secured to citizens of the
United States by existing copyright laws be hereby
secured to the citizens and subjects of every country
the government of which secures reciprocal rights
to the citizens of the United States. A few weeks
later, at a meeting of publishers and others, held in
Philadelphia, resolutions were adopted (which will
be referred to later) opposing any measure of inter-
national copyright.

These four reports were submitted to the Library
Committee, together with one or two individual sug-
gestions, of which the most noteworthy were those
of Harper & Bros, and of Mr. J. P. Morton, a book-
seller of Louisville. Messrs. Harper, in a letter pre-
sented by their counsel, took the broad ground that
" any measure of international copyright was objec-
tionable because it would add to the price of books,
and thus interfere with the education of the people."
It is to be remarked, in regard to this consideration,
that it is equally forcible against any copyright
whatever. As Thomas Hood says : " Cheap bread

LITERARY PROPERTY. 387

is as desirable and necessary as cheap books, but one
does not on that ground appropriate the farmer's
wheat stack." Mr. Morton was in favor of an
arrangement that should give to any dealer the
privilege of reprinting a foreign work, provided he
would contract to pay to the author or his represent-
ative ten per cent, of the wholesale price. This sug-
gestion was afterward incorporated in what was
known as the Sherman bill. In view of the wide
diversity of the plans and suggestions presented to
this committee, there was certainly some ground
for the statement made in his report by the chair-
man, Senator Lot M. Morrill, that " there was no
unanimity of opinion among those interested in the
measure." He maintained further, in acceptance of
the positions taken by the Philadelphians, " that an
international copyright was not called for by reasons
of general equity or of constitutional law ; that the
adoption of any plan which had been proposed
would be of very doubtful advantage to American
authors, and would not only be an unquestionable
and permanent injury to the interests engaged in
the manufacture of books, but a hinderance to the
diffusion of knowledge among the people, and to
the cause of American education."

The commission appointed by the British govern-
ment in 1876, to make inquiry in regard to the laws
and regulations relating to home, colonial, and inter-
national copyright, made reference in the following
terms to the present relations of British authors
with this country : " It has been suggested to us
that this countiy would be justified in taking steps

388 THE QUESTION OF COPYRIGHT.

of a retaliatory character with a view of enforcing,
incidentally, that protection from the United States
which we accord to them. This might be done by
withdrawing from the Americans the privilege of
copyright on first publication in this country. We
have, however, come to the conclusion that, on the
highest public grounds of policy and expediency, it
is advisable that our laws should be based on correct
principles, without respect to the opinions or the
policy of other nations. We admit the propriety of
protecting copyright, and it appears to us that the
principle of copyright, if admitted, is of universal
application. We therefore recommend that this
country should pursue the policy of recognizing the
rights of authors, irrespective of nationality." Here
is a claim for a far-seeing, statesman-like policy,
based upon principles of wide equity, and planned
for the permanent advantage of literature in Eng-
land and throughout the world.

It is mortifying for Americans, possessed of any
sensitiveness, not only for their national honor, but
for their national reputation for common sense, to see
quoted abroad as " the American view of the copy-
right question" such utterances as the resolutions
adopted in the meeting previously referred to, held in
Philadelphia in January, 1872. The meeting was pre-
sided over by Henry Carey Baird, and may be con-
sidered as having represented the opinions of the
Pennsylvania protectionists — opinions which, while
not, as I believe, shared by the majority of our com-
munity, do still succeed in shaping the economic pol-
icy of the nation. The resolutions are as follows:

LITERARY PROPERTY. 389

I. That thought, unless expressed, is the property of
the thinker ; when given to the world, it is, as light,
free to all. 2. As property, it can only demand the
protection of the municipal law of the country to
which the thinker is subject. 3. The author, of any
country, by becoming a citizen of this, and assuming
and performing the duties thereof, can have the
same protection that an American author has. 4.
The trading of privileges to foreign authors for
privileges to be granted to Americans is not just,
because the interests of others than themselves may
be sacrificed thereby. 5. Because the good of the
whole people, and the safety of republican institu-
tions, demand that books shall not be made costly
for the multitude by giving the power to foreign
authors to fix their price here as well as abroad.

The first proposition is certainly a pretty safe
one, as thought, until expressed, can hardly incur
any serious risk of being appropriated.

The second proposition, while admitting for a
literary creation its claim to be classed as property,
denies to it the rights which are held to pertain to
all property in which the owner's title is absolute.
The property which would, if it still existed, most
nearly approximate to such a definition as above giv-
en, is that in slaves. Twenty-five years ago the title
to an African chattel, who was worth, in Charleston,
say $1,000, became valueless if said chattel succeeded
in slipping across to Bermuda. It is this ephemeral
kind of ownership, limited by accidental political
boundaries, that the Philadelphia protectionists are
willing to concede to the creation of a man's mind,

390 THE QUESTION OF COPYRIGHT.

the productions into which have been absorbed the
gray matter of his brain, and, possibly, the best part
of his life.

In regard to the third proposition, it may be said
that the protection accorded to American authors
is, according to their testimony, most unremuner-
ative and unsatisfactory ; and it is difficult to under-
stand why an European author, who has before
him, under international conventions, the markets
of his native country and of all the civilized world,
excepting belated America, should be expected to
give up these for the poor half loaf accorded to his
American brother.

The fourth proposition strikes one as rather a
remarkable protest to come from Philadelphia. Here
are a number of American producers (of literature)
who ask for a very moderate amount of protection
(if that is the proper term to apply to a mere recog-
nition of property rights) for their productions ; but
the Philadelphians, filled with an unwonted zeal for
the welfare of the community at large, say : "No;
this won't do ; prices would be higher and consumers
would suffer."

The last proposition appears to show that this
want of practical sympathy with the producers of
literature is not due to any lack of interest in the
public enlightenment. It may well, however, be
doubted whether education as a whole, including
the important branch of ethics, is advanced by
permitting our citizens to appropriate, without com-
pensation, the labor of others, while through such
appropriation they are also assisting to deprive our

LITERARY PROPERTY. 39 1

own authors of a portion of their rightful earnings.
But, apart from that, the proposition, as stated,
proves too much. It is fatal to all copyright and
to all patent right. If the good of the community
and the safety of republican institutions demand
that, in order to make books cheap, the claim to a
compensation for the authors must be denied, why
should we continue to pay copyrights to Lowell and
Whittier, or to the families of Longfellow and
Irving? The so-called owners of these copyrights
actually have it in their power, in -operation with
their publishers, to " fix the prices " of their books
in this market. This monopoly must, indeed, be
pernicious and dangerous when it arouses Pennsyl-
vania to come to the rescue of oppressed and
impoverished consumers against the exactions of
greedy producers, and to raise the cry of " free
books for free men."

Early in 1880 a draft of an international copy-
right treaty was prepared, which received the sup-
port of nearly all the publishers, including Messrs.
Harper, who had found reasons since 1872 to modify
their views, and of some authors. The latter,
together with the publishing firms which had previ-
ously been most active in behalf of a measure, gave
their assent to this, not because they thought its
provisions on the whole wise or desirable, but
because the middle ground that it took between
an author's bill, without any restrictions, and the
extreme " manufacturing view " of the Philadel-
phians seemed most likely to secure the general
support required ; and it was believed that, if a

392 THE QUESTION OF COPYRIGHT.

copyright could once be inaugurated, it ought not
to prove difficult to amend it in the direction of
greater liberty and greater simplicity.

The proposed treaty provided that copyright
should be accorded reciprocally to English and
American works, the foreign editions of which should
be issued not later than three months after the
first publication ; the entries for copyright should,
however, by means of title-pages, be made simultane-
ously in the home and the foreign offices of registry,
and the several conditions applicable to the national
copyright enactments should be duly complied with.
It was further provided, in order to secure the pro-
tection of the American copyrights, that the foreign
work must be printed and bound in this country, the
privilege being accorded of importing stereotype
plates and electrotypes of the illustrations. It is to
be noted that this last clause indicates an advance in
liberality of opinion since the suggestions of 1872
and of earlier dates, in nearly all of which it was
insisted that the foreign work must be entirely re-
manufactured in this country. The authors and
publishers who gave their signatures, under protest,
to the petition in behalf of this treaty, objected prin-
cipally to the brief term allowed for the preparation
and issue of the reprinted editions. Many of the
authors believed that there should be no limit of
time, while some of the leading publishing houses
insisted that the limit ought to be twelve months,
and should in no case exceed six months. Attention
was especially called to the fact that such a limita-
tion as three months, while a disadvantage to all

LITERARY PROPERTY. 393

authors whose reputations were not sufficiently
assured to enable them to make advance agree-
ments for their works, would be especially detri-
mental to American writers, whose books were rarely
undertaken by English or continental reprinters until
they had secured a satisfactory home reputation.
Chas. Scribner, Henry Holt & Co., and Roberts
Bros, united with G. P. Putnam's Sons in a protest
against what seemed to them the unwise and illiberal
restrictions of the proposed measure. These firms
did not, however, think best to withhold their signa-
tures from the petition in behalf of the treaty, being
of opinion that even if it might not prove practi-
cable to amend this before it was put into effect,
amendments could at a later date be introduced, and
that in any case, even a very faulty treaty would be
an advance over the present unsatisfactory and
iniquitous state of things.

In July, 1880, the American members of the
International Copyright Committee, which had been
appointed by the association for the reform of the
law of nations, addressed to Mr. Evarts, Secretary
of State, a memorial in behalf of a treaty practically
identical with the measure above specified, with the
exception of specifying no limit of time for the issue
of the reprint.

In September, 1880, Mr. Lowell, at that time
minister in London, submitted to Earl Granville
the draft of a treaty based upon the suggestions of
American publishers. Lord Granville advised Mr.
Lowell, in March, 1881, that the British govern-
ment would be interested in completing such treaty,

394 THE QUESTION OF COPYRIGHT.

but that an extension of the term for republication
from three months to six would be considered
essential, while a term of twelve months was thought
to be much more equitable.

In March, 1881, the International Literary Asso-
ciation adopted the report of a committee appointed
to examine the provisions of the proposed treaty
between the United States and England. In this
report the two countries were congratulated at the
prospect of an agreement so important to the authors
of each, and the United States was especially con-
gratulated upon the first steps being taken to remove
from the nation the opprobrium of being the only
people from whom authors could not secure just
treatment. The provisions of the treaty calling for
remanufacture, and the brief term allowed for the
preparation of the reprint, were, however, sharply
criticised. In the spring of 1881 Sir Edward Thorn-
ton, the British minister in Washington, received
instructions from London to proceed to the consid-
eration of the treaty, provided the term for reprint
could be extended. President Garfield had taken a
strong interest in the matter, an interest which Mr.
Blaine was understood to share, and it was expected
that the treaty would be submitted to the Senate in
the fall of 1 88 1. The death of Garfield and the
change in the State Department appear to have
checked the progress of the business, and there has
since, to the date of this writing (June, 1883), been
no evidence of any interest in it on the part of the
present administration.

It appears as if further consideration for the

LITERARY PROPERTY. 395

treaty can be secured only on the strength of a popu-
lar demand, based on a correct understanding of the
rights and just requirements of authors, American
and foreign, and on an intelligent appreciation of
the unworthy position toward the question at pres-
ent occupied by the United States, which alone
among civilized nations has failed to give full recog-
nition to literature as property.

This brief historical sketch of the various national
and international enactments relating to copyrights,
indicates also the lines along which were developed
the ideas relating to authors' rights. The concep-
tion of property in literary ideas is of necessity
closely bound up with the conception of property in
material things. In tracing through successive cent-
uries the history of this last, we find a continued
development in its range and scope corresponding
to the development in civilization itself, of which so
large a factor is the recognition of human rights and
reciprocal human duties.

It would be beyond the scope of this paper
to go into the history of the property idea. It
is sufficient to point out that what a man owned
appears in the first place to have been that
which he had " occupied," and could defend with
his own strong arm. Later, it became what his
tribe could defend for him. With the organization
of tribes into nations, that which a man had oc-
cupied, shaped, or created was recognized as his
throughout the territory of his nation.

The idea of protection by national law was
widened into an imperial conception by the Roman

3g6 THE QUESTION OF COPYRIGHT.

control of the imperial world. With the shattering
of the empire, the former local views of property
rights (or, at least, of property possibilities) again
obtained, and were only gradually widened and ex-
tended by the growth, through commerce, of inter-
national relations — a growth much retarded by feudal
claims and feudal strifes. The robber-barons of the
Rhine, by their crushing extortions from traders, did
what was in their power to stifle commerce, and
unwittingly laid the foundations of the so-called
protective system ; and later, the little trading com-
munities, still hampered by the baronial standard,
built up at their gates barriers against the admis-
sion of various products from the outer world, the
free purchase of which by their own citizens would,
as they imagined, in some manner work to their im-
poverishment. Barons and traders were alike fight-
ing against the international idea of property, under
which that which a man has created, or legitimately
occupied, is his own, and he is free to exchange it ;
that is, entitled to be protected in the free exchange
of it, throughout the civilized world, for any other
commodities or products. A man's ownership of a
thing cannot be called complete if it is to be ham-
pered with restrictions as to the place where, or the
objects for which, he can exchange it.

To that extent the idea of international copyright
is bound up with the idea of free trade. They both
claim a higher and wider recognition for the rights of
property, taking the position that what a man has
created by his own labor is his own, to do what he
will with, subject only to his proportionate contri-

LITERARY PROPERTY. 397

bution to the cost of carrying on the organization of
the community under the protection of which his
labor has been accomplished, and to the single limi-
tation that the results of his labor shall not be used
to the detriment of his fellow-men. The opponents
of free trade would limit the right of the producer
to exchange his products, saying, as to certain com-
modities, that he shall not be permitted to receive
them at all, and, as to others, that he must give
of his own product, in addition to the open market
equivalent of the article desired, an additional quan-
tity as a bonus to some of his favored fellow-citizens.
The opponents of international copyright assert that
the producers of literary works should be at liberty
to sell them only within certain political bounda-
ries. The necessary deduction from such a position
is, that the extent of an author's remuneration is
made to depend, not upon the number of readers
whom he had benefited, but upon the extent of the
political boundaries of the country in which he hap-
pened to be a resident.

If the recognition of the fact that aliens and
citizens of foreign states (the " barbarians-" of the
Greeks and Romans) possessed rights deserving
of respect, had depended solely upon the develop-
ment of international ethics and humanitarian prin-
ciples, its growth would have been still slower than
has been the case. That growth has, however,
been powerfully furthered by utilitarian teachings.
When men came to understand that their own wel-
fare was not hampered, but furthered, by the pros-
perity of their neighbors, reciprocity took the place

39§ THE QUESTION OF COPYRIGHT.

of reprisals, and commercial exchanges succeeded
Chinese walls.

The same result, in Europe at least, followed the
understanding of the fact that the development of
national literature, and the adequate compensation
of national authors, is largely dependent upon the
proper recognition of the property rights of foreign
authors: this understanding, added to the widening
conceptions of human rights, irrespective of bound-
aries, and the increasing assent to the claim that the
producer is entitled to compensation proportioned
to the extent of the service rendered by his pro-
duction, and to the number of his fellow-men bene-
fited by this, have secured international copyright
arrangements on the part of all countries where
literature exists, excepting only the great republic,
which was founded on the " rights of men."

The question of the proper duration of literary
property has called forth a long series of discussions
and arguments, the more important of which are
referred to in Mr. Macleod's paper in this work.
Authors have almost from the beginning taken the
position that literary property is the highest kind of
property in existence ; that no right or title to a
thing can be so perfect as that which is created by
a man's own labor and invention ; that the exclusive
right of a man to his literary productions and to the
use of them for his own profit is as entire and per-
fect as the faculties employed and labor bestowed
are entirely and perfectly his own. " If this claim
be accepted," says Noah Webster, " it is difficult to
understand on what logical principle a legislature

LITERARY PROPERTY. 399

or court can determine that an author enjoys only
a temporary property in his own productions. If a
man's right to his own property in writing is as per-
fect as to the productions of his farm or his shop,
how can the former be abridged or limited while
the latter is held without limitations? Why do the
productions of manual labor reach higher in the
scale of rights of property than the productions of
the intellect ? "

It is the case, however, that, notwithstanding the
logic of this position, no nation to-day accords
copyright for more than a limited term, of which
the longest is eighty years. In the only countries
in which the experiment of perpetual copyright has
been attempted — Holland, Belgium, Sweden and
Denmark — a return was speedily made to protection
for a term of years. There appears to have been
always apprehension on the part of the public and
the governments lest an indefinite copyright might
result in the accumulation in the hands of traders
of " literary monopolies," under which extortionate
prices would be demanded from successive genera-
tions for the highest and most necessary produc-
tions of national literature. It is hardly practicable
to estimate how well founded such apprehensions
may be, as no opportunities have as yet existed for
the development of such monopolies. It seems
probable that accumulations of literary property
would, as in the case of other property, be so far
regulated by the laws of supply and demand as not
to become detrimental to the interests of the com-
munity. If a popular demand existed or could be

4-00 THE QUESTION OF COPYRIGHT.

created for an article, it would doubtless be pro-
duced and supplied at the lowest price that would
secure the widest popular sale. If the article was
suited but for a limited demand, the price, to re-
munerate the producer and owner, would be pro-
portionately higher. A further consideration ob-
tains in connection with literary property which has
also influenced the framing of copyright enactments.
The possibility exists that the descendants of an
author, who have become by inheritance the owners
of his copyrights, might, for one cause or another,
desire to withdraw the works from circulation. A
case could even occur in which parties desiring to
suppress works might possess themselves of the
copyrights for this purpose. The heirs of Calvin,
if converted to Romanism, would very naturally
have desired to suppress the circulation of the In-
stitutes; and the history of literature affords, of
course, hundreds of instances in which there would
have been sufficient motive for the suppressing, by
any means which the nature of copyrights might
render possible, works that had been once given to
the world. It will, doubtless, be admitted that, in
this class of cases, the development of literature and
freedom of thought would alike demand the exercise
of the authority of the government on behalf of the
community, to insure the continued existence of
works in which the community possessed any con-
tinued interest.

The efforts in this country in behalf of inter-
national copyright have been always more or less
hampered by the question being confused with that

LITERARY PROPERTY. 401

of a protective tariff. The strongest opposition to
a copyright measure has uniformly come from pro-
tectionists.

Richard Grant White said, in 1868 : "The refusal
of copyright in the United States to British authors
is, in fact, though not always so avowed, a part of
the American protective system. With free trade
we shall have a just international copyright."

It would be difficult, however, for protectionists
to show logical grounds for their position. Ameri-
can authors are manufacturers who are simply ask-
ing, first, that they shall not be undersold in their
home market by goods imported from abroad on
which no (ownership) duty has been paid, which
have been simply " appropriated ; " secondly, that
the government may facilitate their efforts to secure
compensation for such of their own goods as are
enjoyed by foreigners. These are claims with
which a protectionist who is interested in develop-
ing American industry ought certainly to be in sym-
pathy. The contingency that troubles him, how-
ever, is the possibility that, if the English author is
given the right to sell his books in this country,
the copies sold may be, to a greater or less extent,
manufactured in England, and the business of mak-
ing these copies may be lost to American print-
ers, binders, and paper men. He is much more
concerned for the protection of the makers of the
material casing of the book than for that of the
author who created its essential substance.

It is evidently to the advantage of the consumer,

upon whose interest the previously referred to Phila-
26

402 THE QUESTION OF COPYRIGHT.

delphia resolutions lay so much stress, that the labor
of preparing the editions of his books be econo-
mized as much as possible. The principal portion of
the cost of a first edition of a book is the setting
of the type, together with, if the work is illustrated,
the designing and engraving of the illustrations. If
this first cost of stereotyping and engraving can be
divided among several editions, say, one for Great
Britain, one for the United States, and one for
Canada and the other colonies, it is evident that the
proportion to be charged to each copy printed is
less, and that the selling price per copy can be
smaller, than would be the case if this first cost had
got to be repeated in full for each market. It is,
then, to the advantage of the consumer that, what-
ever copyright arrangement be made, nothing shall
stand in the way of foreign stereotypes and illus-
trations being duplicated for use here whenever
the foreign edition is in such shape as to render
this duplicating an advantage and a saving in
cost.

The few protectionists who have expressed them-
selves in favor of an international copyright measure,
and some others who have fears as to our publish-
ing interest being able to hold its own against any
open competition, insist upon the condition that
foreign works, to obtain copyright, must be wholly
remanufactured and republished in this country.
We have shown how such a condition would, in the
majority of cases, be contrary to the interests of
the American consumer, while the British author is
naturally opposed to it, because, in increasing ma-

LITERARY PROPERTY. 4O3

terially the outlay to be incurred by the American
publisher in the production of his edition, it pro-
portionately diminishes the profits, or prospects of
profits, from which is calculated the remuneration
that can be paid to the author.

The suggestion, previously referred to, of permit-
ting the foreign book to be reprinted by all dealers
who would contract to pay the author a specified
royalty, has, at first sight, something specious and
plausible about it. It seems to be in harmony with
the principles of freedom of trade, in which we are
believers. It is, however, directly opposed to those
principles. First, it impairs the freedom of con-
tract, preventing the producer from making such
arrangements for supplying the public as seem best
to him ; and, secondly, it undertakes, by paternal
legislation, to fix the remuneration that shall be
given to the producer for his work, and to limit the
prices at which this work shall be furnished to the
consumer. There is no more equity in the govern-
ment's undertaking this limitation of the producer
and protection of the consumer in the case of books,
than there would be in that of bread and beef.
Further, such an arrangement would be of benefit
to neither the author, the public, nor the publishers,
and would, we believe, make of international copy-
right, and of any copyright, a confusing and futile
absurdity.

A British author could hardly obtain much satis-
faction from an arrangement which, while prevent-
ing him from placing his American business in the
hands of a publishing house selected by himself,

404 THE QUESTION OF COPYRIGHT.

and of whose responsibility he could assure himself,
would throw open the use of his property to any
dealers who might scramble for it. He could exer-
cise no control over the style, the shape, or the
accuracy of his American editions ; could have no
trustworthy information as to the number of copies
the various editions contained ; and, if he were
tenacious as to the collection of the royalties to
which he was entitled, he would be able in many
cases to enforce his claims only through innumer-
able law suits, and would find the expenses of the
collection exceed the receipts.

The benefit to the public would be no more ap-
parent. Any gain in the cheapness of the editions
produced would be more than offset by their un-
satisfactoriness ; they would, in the majority of
cases, be untrustworthy as to accuracy or com-
pleteness, and be hastily and flimsily manufactured.
A great many enterprises, also, desirable in them-
selves, and that would be of service to the public,
no publisher could, under such an arrangement,
afford to undertake at all, as, if they proved success-
ful, unscrupulous neighbors would, through rival
editions, reap the benefit *of his judgment and his
advertising. In fact, the business of reprinting
would fall largely into the hands of irresponsible
parties, from whom no copyright could be collected.
The arguments against a measure of this kind are,
in short, the arguments in favor of international
copyright. A very conclusive statement of the case
against the equity or desirability from any point of
view of such an arrangement in regard to home

LITERARY PROPERTY. 405

The recommendation had been made, for the sake
of securing cheap books for the people, that the
law should give to all dealers the privilege of print-
ing an author's books, and should fix a copyright to
be paid to the author that should secure him a " fair
profit for his work." Mr. Spencer objected: 1.
That this would be a direct interference with the
laws of trade, under which the author had the right
to make his own bargains. 2. No legislature was
competent to determine what was a " fair rate of
profit " for an author. 3. No average royalty
could be determined which could give a fair recom-
pense for the different amounts and kinds of labor
given to the production of different classes of books.
4. If the legislature has the right to fix the profits
of the author, it has an equal right to determine
that of his associate in the publication, the publisher;
and if of the publisher, then also of the printer,
binder, and paper maker, who all have an interest
in the undertaking. Such a right of control would
apply with equal force to manufacturers of other
articles of importance to the community, and would
not be in accordance with the present theories of the
proper functions of the government. 5. If books
are to be cheapened by such a measure, it must be
at the expense of some portion of the profits now
going to the authors and publishers ; the assumption
is, that book producers and distributers do not un-
derstand their business, but require to be instructed
by the state how to carry it on, and that the pub-

406 THE QUESTION OF COPYRIGHT.

lishing business alone needs to have its returns
regulated by law. 6. The prices of the best books
would, in many cases, instead of being lessened, be
higher than at present, because the publishers would
require some insurance against the risk of rival
editions, and because they would make their first
editions smaller, and the first cost would have to
be divided among a less number of copies. Such
reductions of prices as would be made would be on
the flimsier and more popular literature, and even
on this could not be lasting. 7. For the enterprises
of the most lasting importance to the public, requir-
ing considerable investment of time and capital, the
publishers require to be assured of returns from the
largest market possible, and without such security
enterprises of this character could not be undertaken
at all. 8. Open competition of this kind would,
in the end, result in crushing out the smaller pub-
lishers, and in concentrating the business in the
hands of a few houses whose purses had been long
enough to carry them through the long and un-
profitable contests that would certainly be the first
effect of such legislation.

All the considerations adduced by Mr. Spencer
have, of course, equal force with reference to open
international publishing, while they may also be
included among the arguments in behalf of inter-
national copyright.

It is due to American publishers to explain that,
in the absence of an international copyright, there
has grown up among them a custom of making pay-
ments to foreign authors, which has become, espe-

LITERARY PROPERTY. 407

dally during the last twenty-five years, a matter of
very considerable importance. Some of the English
authors who testified before the British commission
stated that the payments from the United States
for their books exceeded their receipts in Great
Britain. These payments secure, of 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 means of which he is able to
get his edition printed a week or two in advance of
any unauthorized edition that might be prepared.
In many cases, however, payments have been made
some time after the publication of the works, and
when there was no longer even the slight advantage
of " advance sheets " to be gained from them.

While the authorization of the English author
can convey no title or means of defence against the
interference of rival editions, the leading publishing
houses have, with very inconsiderable exceptions,
respected each other's arrangements with foreign
authors, and the editions announced as published
" by arrangement with the author," and on which
payments in lieu of copyright have been duly made,
have not been, as a rule, interfered with. This un-
derstanding among the publishers goes by the name
of "the courtesy of the trade." I think it is safe to
say that it is to-day the exception for an English
work of any value to be published by any reputable
house without a fair, and often a very liberal, recog-
nition being made of the rights (in equity) of the
author. In view of the considerable amount of
harsh language that has been expended in England

408 THE QUESTION OF COPYRIGHT.

upon our American publishing houses, and the
opinion prevailing in England that the wrong in
reprinting is entirely one sided, it is in order here to
make the claim— which can, I believe, be fully sub-
stantiated— that, in respect to the recognition of the
rights of authors unprotected by law, their record
has, in fact, during the past twenty-five years been
better than that of their English brethren. Eng-
lish publishers have become fully aroused to the
fact that American literary material has value and
availability, and each year a larger amount of this
material has had the honor of being introduced to
the English public. According to the statistics of
1878, ten per cent, of the works issued in England
in that year were American reprints. The acknowl-
edgments, however, of any rights on the part of
American authors have been few and far between,
and the payments but inconsiderable in amount.
The leading English houses would doubtless very
much prefer to follow the American practice of pay-
ing for their reprinted material, but they have not
succeeded in establishing any general understanding
similar to our American " courtesy of the trade,"
and books that have been paid for by one house are,
in a large number of cases, promptly reissued in
cheaper rival editions by other houses. It is very
evident that, in the face of open and unscrupulous
competition, continued or considerable payments to
authors are difficult to provide for; and the more
credit is due to those firms who have, in the face of
this difficulty, kept a good record with their Ameri-
can authors.

LITERARY PROPERTY. 409

One of the not least important results to be looked
for from international copyright is a more effective
co-operation in their work on the part of the pub-
lishers of the two great English-speaking nations.
They will find their interest and profit in working
together; and the very great extension that maybe
expected in the custom of a joint investment in the
production of books for both markets will bring a
very material saving in the first cost— a saving in the
advantage of which authors, publishers, and public
will alike share.

It seems probable that the "courtesy of the
trade," which has made possible the present rela-
tions between American publishers and foreign
authors, is not going to retain its effectiveness.
Within the last few years certain " libraries " and
" series " have sprung into existence, which present
in cheaply printed pamphlet form some of the best
recent English fiction. The publishers of these
series reap the advantage of the literary judgment
and foreign connections of the older publishing
houses, and, taking possession of material that has
been carefully selected and liberally paid for, are
able to offer it to the public at prices which are cer-
tainly low as compared with those of bound books
that have paid copyright, but are doubtless high
enough for literature that is so cheaply obtained
and so cheaply printed. These enterprises have
been carried on by concerns which have not hereto-
fore dealt in standard fiction, and which are not
prepared, to respect the international arrangements
or trade courtesies of the older houses.

4-IO THE QUESTION OF COPYRIGHT.

To one of the " cheap series " the above remarks
do not apply. The " Franklin Square Library" is
published by a house which makes a practice of
paying for its English literary material, and which
lays great stress upon " the courtesy of the trade."
It is generally understood that this series was
planned, not so much as a publishing investment,
as for purposes of self-defence-, and that it would in
all probability not be continued after the necessity
for self-defence had passed by. A good many of its
numbers include works for which the usual English
payments have been made, and it is probable that,
in this shape, books so paid for cannot secure
a remunerative sale. It seems safe to conclude,
therefore, that their publication is not, in the literal
sense of the term, a business investment, and that
the undertaking was not planned to be permanent.

A very considerable business in cheap reprints
has also sprung up in Canada, from which point are
circulated throughout the western states cheap edi-
tions of English works, for the "advance sheets"
and " American market " of which United States
publishers have paid liberal prices. Some enterpris-
ing Canadian dealers have also taken advantage of
the present confusion between the United States
postal and customs regulations to build up a trade
by supplying through the mails reprints of American
copyright tvorks, in editions which, being flimsily
printed and free of charge for copyright, can be
sold at very moderate prices indeed.

It is very evident that, in the face of competition
of this kind, the payments by American publishers

LITERARY PROPERTY. 411

to foreign writers of fiction must be materially
diminished. These pamphlet series have, however,
done a most important service in pointing out the
absurdity of the present condition of literary prop-
erty, and in emphasizing the need of an inter-
national copyright law. In connection with the
change in the conditions of book manufacturing
before alluded to, they may be credited as having
influenced a material modification of opinion on the
part of certain publishers who have in years past
opposed an international copyright as either inex-
pedient or unnecessary, but who are now quoted as
ready to give their support to any practicable and
equitable measure that may be proposed.

We may, I trust, be able, at no very distant
period, to look back upon, as exploded fallacies of
an antiquated barbarism, the two beliefs, that the
material prosperity of a community can be assured
by surrounding it with Chinese walls of restriction
to prevent it from purchasing in exchange for its
own product its neighbor's goods, and that its
moral and mental development can be furthered by
the free exercise of the privilege of appropriating
its neighbor's books.1

June, 1884.

1 For the account of the realization of these prophecies, at least in
part, seven years later, the reader is referred to a subsequent chapter
in this volume, in which will be found the text of the International
Copyright Bill of 1891.

XXII.

DEVELOPMENT OF STATUTORY COPY-
RIGHT IN ENGLAND.

By R. R. Bowker.

The statute of Anne, the foundation of the pres-
ent copyright system, which took effect April 10,
1710, gave the author of works then existing, or his
assigns, the sole right of printing for twenty-one
years from that date and no longer ; of works not
printed, for fourteen years and no longer, except in
case he were alive at the expiration of that term,
when he could have the privilege prolonged for
another fourteen years. Penalties were provided,
which could not be exacted unless the books were
registered with the Stationers' Company, and which
must be sued for within three months after the of-
fence. If too high prices were charged, the queen's
officers might order them lowered. A book could
not be imported without written consent of the
owner of the copyright. The number of deposit
copies was increased to nine. The act was not to
prejudice any previous rights of the universities and
others.

This act did not touch the question of rights at
common law, and soon after its statutory term of
protection on previously printed books expired, in

DEVELOPMENT OF COPYRIGHT IN ENGLAND. 413

1 73 1, lawsuits began. The first was that of Eyre
vs. Walker, in which Sir Joseph Jekyll granted, in
1735, an injunction as to The Whole Duty of Man,
which had been first published in 1657, or seventy-
eight years before. In this and several other cases
the Court of Chancery issued injunctions on the
theory that the legal right was unquestioned. But
in 1769 the famous case of Millar vs. Taylor, as to
the copyright of Thomson's Seasons, brought direct-
ly before the Court of King's Bench the question
whether rights at common law still existed, aside
from the statute and its period of protection. In
this case Lord Mansfield and two other judges held
that an author had, at common law, a perpetual
copyright, independent of statute, one dissenting
justice holding that there was no such property at
common law. In 1774, in the case of Donaldsons
vs. Beckett, this decision was appealed from, and
the issue was carried to the highest tribunal, the
House of Lords.

The House of Lords propounded five questions
to the judges. These, with the replies,1 were as fol-
lows :

I. Whether, at common law, an author of any book or literary com-
position had the sole right of first printing and publishing the same
for sale; and might bring an action against any person who printed,
published, and sold the same without his consent ? Yes, 10 to 1
that he had the sole right, etc., and 8 to 3 that he might bring the
action.

1 The votes on these decisions are given differently in the several
copyright authorities. These figures are corrected from 4 Burrow's
Reports, 2408, the leading English parliamentary reports, and are
probably right.

4H THE QUESTION OF COPYRIGHT.

II. If the author had such right originally, did the law take it
away, upon his printing and publishing such book or literary com-
position ; and might any person afterward reprint and sell, for his
own benefit, such book or literary composition against the will of the
author ? No, 7 to 4.

III. If such action would have lain at common law, is it taken
away by the statute of 8 Anne ? And is an author, by the said
statute, precluded from every remedy, except on the foundation of
the said statute and on the terms and conditions prescribed thereby ?
Yes, 6 to 5.

IV. Whether the author of any literary composition and his as-
signs had the sole right of printing and publishing the same in per-
petuity, by the common law? Yes, 7 to 4.

V. Whether this right is any way impeached, restrained, or taken
away by the statute 8 Anne ? Yes, 6 to 5.

These decisions, that there was perpetual copy-
right at common law, which was not lost by pub-
lication, but that the statute of Anne took away
that right and confined remedies to the statutory
provisions, were directly contrary to the previous
decrees of the courts, and on a motion seconded by
the Lord Chancellor, the House of Lords, 22 to 11,
reversed the decree in the case at issue. This con-
struction by the Lords, in the case of Donaldsons
vs. Beckett, of the statute of Anne, has practically
" laid down the law " for England and America ever
since.

Two protests against this action deserve note.
The first, that of the universities, was met by an
act of 1775, which granted to the English and
Scotch universities and to the colleges of Eton,
Westminster, and Winchester (Dublin was added
in 1 801) perpetual copyright in works bequeathed
to and printed by them. The other, that of the

DEVELOPMENT OF COPYRIGHT IN ENGLAND. 415

booksellers, presented to the Commons February
28, 1774, set forth that the petitioners had invested
large sums in the belief of perpetuity of copyright,
but a bill for their relief was rejected. In 1801 an act
was passed authorizing suits for damages at com-
mon law, as well as penalties under statute during
the period of protection of the statute, the need for
such a law having been shown in the case of Beck-
ford vs. Hood, wherein the court had to "stretch a
point " to protect the plaintiff's rights in an anony-
mous book which he had not entered in the Sta-
tioners' Register. An Act of 18 14 extended copy-
right to twenty-eight years and for the remainder
of the life of a surviving author, and relieved the
author of the necessity of delivering the eleven
library copies, except on demand. These deposit
copies were reduced to five by the Act of 1836.

In 1841, under the leadership of Sergeant Tal-
fourd, a great debate on copyright, in which Ma-
caulay took a leading part in favor of restricted
copyright, was started in the Commons, which re-
sulted in the act of 1842 (5 and 6 Vict.), repealing
the previous acts, and presenting a new code of
copyright. It practically preserved, however, the
restrictions of the statute of Anne. The copyright
term was made the author's lifetime and seven years
beyond, but in any event at least forty-two years.
The Judicial Committee of the Privy Council may
authorize publication of a posthumous work in case
the proprietor of the copyright refuse to publish.
Articles in periodicals, etc., have the same copy-
right term, but they revert to the author after

4?6 THE QUESTION OF COPYRIGHT.

twenty-eight years. Subsequent acts extend copy-
right to prints and like art works, designs for manu-
factures, sculptures, dramas, musical compositions,
lectures, for various terms and under differing con-
ditions.

The present law of England as to copyright, says
the Report of the Royal Copyright Commission, in
a Blue Book of 1878, "consists partly of the pro-
visions of fourteen Acts of Parliament, which relate
in whole or in part to different branches of the sub-
ject, and partly of common law principles, nowhere
stated in any definite or authoritative way, but im-
plied in a considerable number of reported cases
scattered over the law reports." The Digest, by
Sir James Stephen, appended to this report, is
presented by the commission as " a correct state-
ment of the law as it stands." This Digest is, per-
haps, the most valuable single contribution yet
made to the literature of copyright, but the fre-
quency with which such phrases occur as " it is prob-
able, but not certain," " it is uncertain," " probably,"
" it seems," show the state of the law, " wholly des-
titute of any sort of arrangement, incomplete, often
obscure," as says the report itself. The Digest is
accompanied, in parallel columns, with alterations
suggested by the commission, and it is much to be
regretted that their work failed to reach the ex-
pected result of an Act of Parliament. The evi-
dence taken by the commissioners forms a second
Blue Book, also of great value. A new copyright
law is now under consideration in England.

It seems possible that, under the precedent of

DEVELOPMENT OF COPYRIGHT IN ENGLAND. 417

the acts of 1775 and 1801, the common law rights,
practically taken away by the statute of Anne, could
be restored by legislation. Its restrictions have not
only ruled the practice of England ever since, but
they were embodied in the Constitution of the
United States, and have influenced alike our legis-
lators and our courts.

December, 1885.
27

XXIII.

CHEAP BOOKS AND GOOD BOOKS.

By Bkander Matthews.

Mr. LOWELL has told us that " there is one thing
better than a cheap book, and that is a book honestly-
come by." And Mr. Curtis has put the same thought
quite as aptly : " Cheap books are good things, but
cheapening the public conscience is a very bad
thing." In these sayings, as in a nutshell, we have
the ethics of international copyright. But on this
side of the question Dr. Van Dyke, with a felicity
and a force I cannot hope to rival, has said all that
need be said ; and I hasten at once to a considera-
tion of the assertion that the effect of the granting
of International Copyright will be to raise the price
of books.

There are still a few who declare that the People
must have cheap books, and that therefore the Peo-
ple will not permit the passage of any bill for Inter-
national Copyright. Within a few days we have
seen declarations like this ascribed to Members of
Congress and to Senators of the United States. It
is our duty always to acknowledge the good faith
of our disputant ; and we must assume, then, that
these Representatives and these Senators are sincere
in holding that the absence of International Copy-

CHEAP BOOKS AND GOOD BOOKS. 419

right gives us cheap books in the United States. I
am inclined to think that not only the opponents of
copyright reform, but even many of its advocates,
believe that the existing lawlessness gives us cheaper
books than we should have if the rights of foreign
authors were legally guarded. It is true, no doubt,
that, in consequence of the competing reprints of
rival pirates, some few books, mostly in a single
department of literature, and generally of inferior
literary quality, are to be bought here for very little
money. But, with these infrequent exceptions,
books are not now cheaper in America because there
is free stealing from the foreigner. It may be said,
further, that the absence of International Copyright
really retards the cheapening of good books in this
country.

This may sound like a paradox, but I shall try to
prove its exact truth. The books which are made
cheaper by piracy are nearly all English novels.
The so-called libraries — the Seaside Library, for in-
stance, the Franklin Square Library, and their fel-
lows— contain nearly all the books which are cheap
because they are not paid for. I do not mean here
to suggest that all the books reprinted in all these
libraries are pirated ; but piracy is the primary cause
of their low prices. These libraries are devoted
almost wholly to fiction; by actual count of their
catalogues, nine volumes out of ten are novels. To
profit by the provisions of the postal laws, these
libraries are registered as periodicals; and they ap-
pear at regular intervals, once, twice, and even three
times a week. A library which issues but one book

420 THE QUESTION OF COPYRIGHT.

a week must publish fifty-two books a year ; after
allowing for the occasional American book of which
the copyright has run out, and for the occasional
foreign biography or history which seems popular
enough to fit it for the uneducated audience to
which these series appeal — after making these allow-
ances, fully forty of the fifty-two annual numbers of
any one of these libraries must be English novels.
Now, there are not forty novels published in Great
Britain in any one year which are worth reprinting
in the United States. I do not think there are
twenty — I doubt if there are ten. Yet in one of the
cheap libraries, issued three times a week, more than
a hundred English novels are now published every
year.

And this is at a time when there is no great nov-
elist alive in England, and when the English novel
is distinctly inferior to the novel of America, of
Russia, and of France. But these English novels
are almost the only books which are cheapened by
piracy. These are the books which the women of
America, allured by the premium of cheapness, are
now reading almost exclusively, to the neglect of
native writers. There is a resulting deterioration
of the public taste for good literature; and there is
a resulting tendency to the adoption of English
social standards. It is not wholesome, nor a good
augury for the future of the American people, that
the books easiest to get, and therefore most widely
read, should be written wholly by foreigners, and
chiefly by Englishmen, who cannot help accepting
and describing the surviving results of feudalism

CHEAP BOOKS AND GOOD BOOKS. 42 1

and the social inequalities we tried to do away with
one hundred and twelve years ago. " Society is a
strong solution of books," Dr. Holmes has told us;
" it draws the virtue out of what is best worth read-
ing, as hot water draws the strength of tea-leaves."
While the privilege of piracy endures, American so-
ciety is drawing the vice out of what is least worth
reading, the machine-made tales of the inferior
British novelists of the present day.

Lest this opinion as to the demerits of the mass
of the English novels now so freely reprinted here
may seem over-severe, attention is drawn to a pass-
age from Mr. Frederic Harrison's incisive essay on
the Choice of Books — one of the invigorating vol-
umes of essays which England has sent us of late
years : " But assuredly black night will quickly cover
the vast bulk of modern fiction — work as perishable
as the generations whose idleness it has amused.
It belongs not to the great creations of the world.
Beside them it is flat and poor. Such facts in human
nature as it reveals are trivial and special in them-
selves, and for the most part abnormal and unwhole-
some. I stand beside the ceaseless flow of this
miscellaneous torrent as one stands watching the
turbid rush of the Thames at London Bridge, won-
dering whence it all comes, whither it all goes, what
can be done with it, and what may be its ultimate
function in the order of providence. To a reader
who would nourish his taste on the boundless har-
vests of the poetry of mankind, this sewage outfall
of to-day offers as little in creative as in moral value.
Lurid and irregular streaks of imagination, extrava-

422 THE QUESTION OF COPYRIGHT.

gance of plot and incident, petty and mean subjects
of study, forced and unnatural situations, morbid
pathology of crime, dull copying of the dullest com-
monplace, melodramatic hurly-burly, form the cer-
tain evidence of an art that is exhausted, produced
by men and women to whom it is become a mere
trade, in an age wherein change and excitement
have corrupted the power of pure enjoyment."

It may surprise some readers to be told that
almost the only books which are cheaper in America
owing to the absence of International Copyright
are English novels. But that this is the fact I have
convinced myself by a careful examination of the
statistics of the American book-trade. Pirated books
are nearly always issued in a series or library; and,
as I have said, nine numbers in ten on the list
of these libraries are fiction. The tenth number
may be Mr. Froude's Life of Carlyle, for instance,
or Mr. Justin McCarthy's History of Our Own
Times, both of them books worth reading and
worth keeping, but in this flimsy form almost im-
possible either to read or to keep, because of the
shabbiness of the type, the press-work, and the
paper. It is not sound economy to spare the pocket
and spoil the eyes. It is not sound economy to
pay eighty cents for four evil and awkward pamph-
lets comprising a book which can be bought for a
dollar and a half, decently bound and decently
printed on decent paper — a pleasure to read now and
a treasure to transmit to those who come after us.

A consideration of the present condition and an-
nual statistics of the American book-trade will show

CHEAP BOOKS AND GOOD BOOKS.

42;

that the legal right to pirate is not now utilized by
most American publishers, and that those who are
still privateers seek their booty chiefly, if not solely,
among books of one exceptional class. From the
figures published annually in The Publishers Weekly,
the following table has been prepared to show the
different kinds of books published in the United
States during the past five years.1 (The classifica-
tion is not quite that of the Weekly, but has been
modified slightly by condensation.)

Education and language

Law

Science (medical, physical, mathematical, politi-
cal, and social )

Theology, religion, mental and moral philosophy.

History

Literary history and miscellany, biography and
memoirs, description and travel, humor and
satire

Poetry and the drama

Juveniles

Fiction

Etcetera

Total

1882

221

1883

197

1884

1885

227

225

261

397

455

431

406

407

443

347

39o

399

460

118

119

!37

559

521

529

5°i

182

184

222

171

278

33i

358

^88

767

670

943

934

333

265

329

33°

3472

348i

4088

4020

275
469

499

395

719
220

458
1080
379

4676

Taking up these classes in turn, we shall see what
will be the effect on each of the passage of the
bill of the American Copyright League. On the
first class, education and language, there would be
no effect at all, as the text-books now used in Amer-
ican schools were written by Americans and are
covered by copyright : it is hardly an exaggeration
to say that the American school-boy never sees
a book of foreign authorship in school-hours ; I

1 This essay was first issued in 1887.

424 THE QUESTION OF COPYRIGHT.

know that I never did until after I had entered
college, and then very infrequently. Fortunately
for the future of our country, young Americans
are brought up on American books. The founda-
tion of American education is the native Webster's
Spelling-book. In some respects the making of
school-books is the most important branch of the
publishing business, and the passage of the Copy-
right Bill would not influence it in any way ; Amer-
ican school-books would be neither dearer nor
cheaper.

In the second class, law, are included a tenth of
the books published in the United States last year,
and from the inexorable circumstances of the case
most of these books are of American authorship
and are already protected by copyright. All reports
and all treatises on practice and on constitutional
law, etc., are of necessity national. Now and again
an English treatise of marked merit may be edited
for the use of American lawyers with references to
American cases, but this is infrequent ; and not
often would the price of any work needed by the
American lawyer be increased by the passage of
the Copyright Bill.

Of books in the third and fourth classes — science
and theology — very few indeed are ever pirated.
Once in every three or four years there appears,
in England, or France, or Germany, a book like
Canon Farrar's Life of Christ, the American
price of which is lowered by rival reprints. A
large majority of books of science and theology
published in America are written by American

CHEAP BOOKS AND GOOD BOOKS. 425

authors ; and in general the minority by foreign
authors are published here by an arrangement with
the foreign author tantamount to copyright. Al-
though purely ethical considerations ought to have
more weight with readers of books of this class
than with those of any other, yet it would be in-
frequently that the price of any book of this class
would be raised by giving to the literary laborer
who made it the right to collect the hire of which
he is worthy.

Taken together, the next three classes on the list
— history ; — literary history and miscellany, biog-
raphy and memoirs, description and travel, humor
and satire ; — and poetry and the drama — include
nearly all of what used to be called Belles Lettres
(except fiction), and they comprise nearly a quarter
of the books published in America. In these and
in the preceding classes most of the books are of
American authorship, and most of those of foreign
authorship are published at just the same price
as though they were by native writers. It would
probably surprise most readers who imagine that
the absence of International Copyright gives us
many inexpensive histories and biographies, and
books of travel and poems, if they were to con-
sider carefully the catalogues of the paper-covered
collections which furnish forth our cheap literature.
Among the chief of these collections are the Frank-
lin Square Library and Harper's Handy Series. In
1886 there were issued fifty- four numbers of the
Franklin Square Library, one of which was by an
American. Of the remaining fifty-three, forty-six

426 THE QUESTION OF COPYRIGHT.

were fiction, and only seven numbers could be clas-
sified as history, biography, travels, or the drama —
only seven of these books in one year, and they
were less than one-seventh of the books contained
in this collection. In the same year there were
sixty-two numbers in Harper's Handy Series. De-
ducting four by American authors, we have fifty-
eight books issued in cheap form owing to the
absence of International Copyright. Of these fifty-
eight books fifty-two were fiction, and only six
belonged in other branches of Belles Lettres ; only
six of these books in one year, and they less than
one-ninth of the series. In these two cheap collec-
tions, then, there were published in 1886 one hun-
dred and eleven books of foreign authorship, and of
these all but thirteen were novels or stories. Not
one of these thirteen books was a work of the first
rank which a man might regret missing. It may as
well be admitted frankly that these thirteen books
would probably not have been published quite so
cheaply had there been International Copyright ;
but it may be doubted whether, if that were the
case, the cause of literature and education in the
United States would have been any the worse.

In the class of books for the young there are
possibly more works of foreign authorship sold
than in any other class that we have hitherto con-
sidered, but in most cases they are not sold at
lower prices than American books of the same
character. Indeed, I question whether many Eng-
lish or French books for the young are sold at all in
America. At bottom the American boy is harder

CHEAP BOOKS AND GOOD BOOKS. 42/

to please and more particular than the American
woman ; he likes his fiction home-made, and he
has small stomach for imported stories about the
younger son of a duke. He has a wholesomer taste
for native work. No English juvenile magazine is
sold in the United States, although several Ameri-
can juvenile magazines are sold in Great Britain.
We export books for the young, while we import
them only to a comparatively slight extent.

I come now to the one class of books the price of
which would be increased by the granting of Inter-
national Copyright. This is the large and impor-
tant class of fiction. Of course, American novels
would be no dearer; and probably translations
from the French, German, Italian, Spanish, and Rus-
sian would not vary greatly in price. But English
novels would not be sold for ten or fifteen cents
each. We should not see five or ten rival reprints
of a single story by the most popular English
novelists. There would be but a single edition of
the latest novels of the leading British story-tellers,
and this would be offered at whatsoever price the
authorized publisher might choose to ask — some-
times much, generally little. English fiction would
no longer cost less than American fiction, The
premium of cheapness, which now serves to make
the American public take imported novels instead
of native wares, would be removed; and with it
would be removed the demoralizing influence on
Americans of a constant diet of English fiction.
That American men and women should read the
best that the better English novelists have to offer

428 THE QUESTION OF COPYRIGHT.

us is most desirable ; that our laws should encour-
age the reading of English stories, good and bad
together, and the bad, of course, in enormous ma-
jority, is obviously improper and unwise.

The evil effect of this unfortunate state of things
Mark Twain has most graphically depicted. He
asks if it is an advantage to us, the people of the
United States, to get all kinds of cheap alien books
devoured " in these proportions : an ounce of whole-
some literature to a hundred tons of noxious ? "

"Is this an advantage to us?" he inquires fur-
ther; and he answers his own question thus: "It
certainly is, if poison is an advantage to a person;
or if to teach one thing at the hearth-stone, the po-
litical hustings, and in a nation's press, and teach
the opposite in the books the nation reads is prof-
itable ; or, in other words, if to hold up a national
standard for admiration and emulation half of
each day, and a foreign standard the other half,
is profitable. The most effective way to train an
impressible young mind and establish for all time
its standards of fine and vulgar, right and wrong,
and good and bad, is through the imagination ; and
the most insidious manipulator of the imagination
is the felicitously written romance. The statistics
of any public library will show that of every hundred
books read by our people about seventy are novels
— and nine-tenths of them foreign ones. They fill
the imagination with an unhealthy fascination for
foreign life, with its dukes and earls and kings, its
fuss and feathers, its graceful immoralities, its
sugar-coated injustice and oppressions; and this

CHEAP BOOKS AND GOOD BOOKS. 429

fascination breeds a more or less pronounced dis-
satisfaction with our country and form of govern-
ment, and contempt for our republican common-
places and simplicities; it also breathes longings for
something ' better,' which presently crop out in
diseased shams and imitations of that ideal foreign
life. Hence the dude. Thus we have this curious
spectacle : American statesmen glorifying Ameri-
can nationality, teaching it, preaching it, urging it,
building it up — with their mouths ; and undermin-
ing it and pulling it down with their acts. This is
to employ an Indian nurse to suckle your child,
and expect it not to drink in the Indian nature
with the milk. It is to go Christian-missionarying
with infidel tracts in your hands. Our average
young person reads scarcely anything but novels ;
the citizenship and morals and predilections of the
rising generation of America are largely under train-
ing by foreign teachers. This condition of things
is what the American statesmen think it wise to
protect and preserve — by refusing International
Copyright, which would bring the national teacher
to the front and push the foreign teacher to the
rear. We do get cheap books through the absence
of International Copyright ; and any who will con-
sider the matter thoughtfully will arrive at the con-
clusion that these cheap books are the costliest
purchase that ever a nation made."

International Copyright will perhaps increase the
cost of such English novels as may be written
in the future ; but it is not retroactive ; it cannot
affect the past ; it will not alter the price of Shake-

430 THE QUESTION OF COPYRIGHT.

speare or of Scott, of Macaulay or of Thackeray. It
will not make any American author ask more for
his book, if, indeed, by expanding his market, it
does not tempt him to lower his terms, seeking a
wider sale and a smaller profit. Emerson and Ir-
ving, Longfellow and Hawthorne, will be as easily
accessible hereafter as they are to-day. The books
which are cheap now will always be cheap ; and
with the removal of the sickly flood of stolen Eng-
lish fiction there will come an opportunity for the
American publisher to issue good books at low
prices.

Here we come to the special point of this paper:
the cheapest books to be bought to-day in the
United States are mostly inferior stories by contem-
porary English novelists, while the cheapest books
to be bought to-day in England, in France, and in
Germany are the best books by the best authors of
all times. Those who declaim against International
Copyright because they do not wish to deprive the
poor boy of the cheap book he may study by the
firelight after his hard day's work, would perhaps be
surprised to be told that of the " Hundred Best
Books" (of which we lately had so many lists), of
the books best fitted to form character and to make
a man, very few indeed, not more than half a dozen,
are to be found in any of the cheap libraries which
flourish because of the absence of copyright. Most
of these great works are old and consecrated by
time ; they are nearly all free to be printed by whoso
will. In Sir John Lubbock's original list of a hun-
dred best authors only two were American, and only

CHEAP BOOKS AND GOOD BOOKS. 43 1

twelve were recent Englishmen whose works are
still protected by English copyright. Eighty-six
out of the hundred were classics of ancient and
modern literature — Greek and Latin, Italian and
French, German and English.

Now, in Germany, in France, and in England,
there have been many efforts of late years to supply
very cheap editions of these classics at a price with-
in the means of the poorest student. In the United
States no such effort has been made ; nor is it likely
to be made as long as the market for cheap books
is supplied by inferior foreign fiction, which not
only usurps the place of better literature, but spoils
the appetite for it. The cheap books to be bought
in England, in France, and in Germany are stimu-
lant and invigorating, mentally and morally ; a man
is better for reading them ; he is richer and stronger,
and more fit for the struggle of life. The cheap
books to be bought in the United States are only
too often the trivial trash of the ladies who call
themselves "Ouida"and " The Duchess." How
much these may nerve a man or a woman for the
realities of existence, how much the wisdom to be
got from them may arm us for the stern battle of
life, I cannot say.

A consideration of the conditions of book-pub-
lishing in Great Britain, in France, and in the Ger-
man Empire is not without interest in itself ; and it
may serve further to show that Americans do not
enjoy a monopoly of cheap books.

The British are book-borrowers, and not book-
buyers ; they are accustomed to hire their freshest

432 THE QUESTION OF COPYRIGHT.

reading matter from the circulating library. I re-
member hearing Professor Sylvester, the eminent
English mathematician, who was until recently a
member of the faculty of Johns Hopkins Univer-
sity— I remember hearing him express the surprise
he felt on his first arrival in this country, when he
was staying with Professor Pearce in Cambridge, and
happened to hear two of the ladies of the family
remark that they had just been in to Boston to buy
a book. " To buy a book?" repeated Professor
Sylvester ; " why, in England nobody buys a book ! "
Perhaps this is an over-statement of the case ; but
it is true that the British book-trade is in an un-
healthy condition, and that the publishers and the
public are at opposite sides of a vicious circle — the
people refuse to purchase because new books are
dear, and the publishers ask a high price because
there are but few buyers.

In England a novel, for instance, is generally
published in three volumes at half a guinea a vol-
ume— say seven dollars and a half for a single story.
At this prohibitive price the publisher can hope for
no private purchaser, and he relies wholly on the
demand from the circulating libraries, which have to
meet the wishes of their subscribers, and to which
the volumes are sold at a heavy discount. Not
only novels, but travels, histories, and biographies
are usually brought out in England at absurdly
exaggerated prices. If the book succeed, if it be
really deserving of a wider sale, popular editions at
lower figures soon follow. It is only the first edi-
tions, intended solely for the circulating libraries,

CHEAP BOOKS AND GOOD BOOKS. 433

which are disproportionately dear. Six months or
a year after a novel first appears in three volumes,
it will probably be republished in a single volume
at a price varying from three shillings and sixpence
to six shillings— say, ninety cents to a dollar and a
half. Often it also appears a little later in a rail-
way edition at two shillings — fifty cents. The re-
duction in the price of histories and biographies is
not so large; but second-hand copies in excellent
condition can be had at a tithe of the original cost
from the circulating libraries, which sell off their
surplus stock as soon as the pressure of the first
demand is relieved.

This system of publishing seems cumbrous and
top-heavy. It is peculiar to Great Britain. It has
never been adopted by any other nation. It could
exist only in an island, or in a country with a com-
pact population having both leisure and means.
But apparently it is not altogether unsatisfactory to
the English, and it does not make books as dear as
at first glance we might suppose. The brand-new
book, smoking-hot from the press, is intended to be
borrowed and not bought ; but commonly, after a
year or two, it can be had at a moderate price.
Professor Lounsbury, of the Sheffield Scientific
School at Yale, after an experience of many years,
has recorded it as his deliberate opinion that, in the
long run, English books are cheaper than American
books.

Of late there have been many efforts made in

England to create and to satisfy a popular desire

for eood books at low prices. There are even signs
& 28

434 THE QUESTION OF COPYRIGHT.

that the circulating library system is not as secure
as it has seemed, and that the British may become
book-buyers instead of book-borrowers. A Bristol
publisher having sold several hundred thousand
copies of the late Hugh Conway's Called Back at a
shilling (twenty-five cents), has continued the series
with original stories by Mr. Wilkie Collins, Mr.
Walter Besant, Mr. Andrew Lang, and others. All
of Disraeli's novels are now for sale at a shilling
each ; and all of Thackeray's writings are being
reissued at a shilling a volume by his own publish-
ers, who still own the copyrights. A complete edi-
tion of Carlyle's works has just been begun, to be
sold at the same low price — twenty-five cents. And
it is to be noted that these sets of Thackeray and
Carlyle are not ill-made and flimsy pamphlets, badly
printed with worn type on poor paper ; they are
honest books, firmly printed on good paper and
substantially bound in cloth.

Mr. John Morley's admirable series of English
Men of Letters is now in course of republication at
a shilling for each biography. And a shilling is the
price asked for each of the well-made, neatly
bound, and carefully prefaced volumes of Professor
Henry Morley's Universal Library, which is in-
tended to contain the masterpieces of the master
minds of all countries and all ages. In this most
excellently edited series there have already ap-
peared, month by month, the chief works of Ho-
mer, Virgil, Dante, Machiavelli, Rabelais, Bacon,
Ben Jonson, Cervantes, Moliere, De Foe, Locke,
Dr. Johnson, Goldsmith, Goethe, and Coleridge.

CHEAP BOOKS AND GOOD BOOKS. 435

Professor Henry Morley is also the editor of an-
other series, perhaps even more important, because
the price is lower and the issue more frequent.
This is Cassell's National Library, in weekly vol-
umes at threepence each. For six cents a week a
man may buy a solid little tome of about two hun-
dred pages, containing Franklin's Autobiography,
Walton's Complete Angler, Byron's Childe Harold,
and the like. Nothing at once as cheap in price
and as good in quality as this National Library has
ever been brought out in America.

Crossing the Channel to France, we find the con-
ditions of publishing very different and far more
healthy. There was a time once when books in
France were expensive, and when authors and pub-
lishers alike were content with a small sale and an
apparently large profit. The late Michel-Levy be-
lieved that " cheap books are a necessity, and a
necessity which need bring, moreover, no loss to
either authors or publishers." 1 He converted cer-
tain of the leading French writers to his views, and
he revolutionized the methods of French publish-
ing. The theory of Michel-Levy, that the low price
of one book will tempt the reader and create a de-
sire for another book, was solidly sustained by the
result of his experiment. Thanks to him and to
those who followed his example, France is now the
country where books are the cheapest and where
authors are the best paid. Dignified historical

' An account of Michel-Levy's reform may be found in Mr.
Matthew Arnold's acute paper on "Copyright" in his volume of
Irish Essays.

436 THE QUESTION OF COPYRIGHT.

works generally appear in portly tomes at seven
francs and a half each — say, a dollar and a half (the
price in America for a volume of the same impor-
tance would probably vary from two dollars and a
half to five dollars). These volumes at seven francs
and a half each are relatively few, as the enormous
majority of French books, poems, novels, biogra-
phies, essays, and so forth are of the size called the
" format Charpentier," and are sold for three francs
and a half each — say, seventy cents.

Cheap as these French books are when new, they
are often made even cheaper still as their popularity
broadens. In imitation of the Michel-Levy collec-
tion, many publishers have series which they sell for
one franc a volume — twenty cents — for a seemly
and shapely tome containing a complete copyright
book, by an author of wide repute. Even lower
priced, however, is a later series, the Bibliothcque
Nationale, founded twenty-five years ago, now ex-
tending to several hundred numbers, and containing
not only the French classics but also translations of
nearly all the classics of other literatures. The tidy
little tomes of this series are sold in stitched paper
covers at twenty-five centimes each — five cents — and
in cloth bindings for nine cents each. Inexpensive as
is this Bibliothcque Nationale, it has now a new rival
— the Nouvelle Bibliotheque Populaire — in which the
single numbers are sold for two cents each. I be-
lieve that nothing cheaper than this has ever been
attempted anywhere. Besides the consecrated mas-
terpieces of literature, the books of an impreg-
nable reputation, which ought to furnish forth the

CHEAP BOOKS AND GOOD BOOKS. 437

bulk of any collection making an appeal to the very-
widest circle of readers, the conductor of the Non-
velle BibliotJicque Popnlaire is wisely selecting trans-
lations into French of the best books of contempo-
rary authors of other nations. Thus can a pleased
American discover on the catalogue the names of
Poe, Irving, Longfellow, and Mr. Bret Harte ;
whether these authors are as pleased to see their
works taken without money and without price is
another question !

Turning from France to Germany, we find no
great difference in the conditions of publishing,
although the Germans cannot make their new books
quite as cheap as can the French, since their market
is not so large. German books, in the department
which at college we used to call Belles Lettres, must
be consumed in the home market ; there is no fierce
demand for export. But French fiction and French
criticism are interesting and entertaining throughout
the world. A German novel must rely for its read-
ers on the Fatherland and on those who speak the
mother-tongue ; while French is still the language
of courts and of culture, and a French novel may
be read with as much avidity in Berlin and Vienna,
in London and New York, as in Paris itself.

Whatever may be the price of the new novel in
Germany, and however insufficient may be its sale,
the Germans are not behind the French in their
cheap editions of the great books of the world.
The successors of the house which issued Goethe's
writings now publish the Cottd sche Bibliothek der
Weltliteratur, in which the works of Goethe, Schil-

438 TPIE QUESTION OF COPYRIGHT.

ler, Lessing, Shakespeare, Moliere, Calderon, Dante,
and their fellows appear in solid volumes, substan-
tially bound, and sold at one mark each — twenty-
five cents. One mark is also the price asked for
any volume of Das Wissen der Gegenwart, a collec-
tion of new books, expressly prepared, well printed,
well bound, and most elaborately illustrated. The
volumes of this series are written by experts, and
they are intended to form a sort of cyclopaedia of
the results of the latest researches in science and
history.

Nor are the Germans lacking in a library of the
ancient and modern classics at a still lower price. I
believe that it was Herr Reclam's Universal Biblio-
tJiek which suggested the French Bibliotkeque Na-
tional e and the English " National Library." The
single numbers of this series cost each twenty
pfennige — say, five cents ; and at this price may be
had all the German classics, as well as translations of
the best writings in other languages. Alongside the
works of Schiller and Sophocles, of Shakespeare and
Sheridan, the American finds translations of Cooper,
Longfellow, Mark Twain, Mrs. Stowe, Mr. Aldrich,
and Mr. Bret Harte — of course we cannot expect
Germany to protect the rights of American authors
until America protects the rights of German authors.
The success of this cheap series has brought out
a rival still cheaper — Meyer's Volksbiicher at ten
pfennige a volume — say, two cents and a half for a
complete copy of a masterpiece.

In this survey of the conditions of publishing in
England, France, and Germany, I have sought to

CHEAP BOOKS AND GOOD BOOKS. 439

show that what might seem, at first sight, to be a
paradox, is only the exact truth. In America the
cheapest books are not good books, for the most
part ; certainly they are not the best books. In
Europe the best books are the cheapest. That this un-
fortunate state of affairs in this country is the result
of the absence of International Copyright, and the
inevitable instability of the book trade, I maintain ;
and I assert also that the consequences of the
present unhealthy condition are injurious to the
character of the American people. We now enjoy
the privilege of piracy, as the dwellers on a rocky
islet used to enjoy the privilege of wrecking— and
we avail ourselves of this privilege only to the per-
dition of our own souls. We encourage bad books
and we discourage good books. And to discourage
or injure or retard a good book, as it goes on its
mission of making the world better, is to do an evil
deed. No one has more nobly spoken of the crime
of book murder than John Milton, and with a quota-
tion from him I may fitly conclude :

" For books are not absolutely dead things, but
do contain a potency of life in them to be as active
as that soul was whose progeny they are ; nay, they
do preserve, as in a vial, the purest efficacy and ex-
traction of that living intellect that bred them. I
know they are as lively and as vigorously product-
ive as those fabulous dragon's teeth : and being
sown up and down may chance to spring up armed
men. And yet, on the other hand, unless wariness
be used, as good almost kill a man as kill a good
book. Who kills a man kills a reasonable creature,

440 THE QUESTION OF COPYRIGHT.

God's image; but he who destroys a good book
kills reason itself, kills the image of God, as it were,
in the eye. Many a man lives, a burden to the
earth ; but a good book is the precious life-blood
of a master-spirit, embalmed and treasured up on
purpose to a life beyond life."
New York, March 15, 1888.

XXIV.

AN INTERNATIONAL COPYRIGHT WILL
NOT INCREASE THE PRICES OF
BOOKS.

One of the most frequent objections to the grant-
ing of copyright to foreign authors is the impression
that any such measure must materially increase the
selling price of books. It is pointed out that, in the
absence of a copyright, foreign works have been
issued in this country at very low prices, and it is
assumed that when it becomes necessary to add to
the cost of production the amounts to be paid to
the authors, and when the sales, now divided be-
tween several competing editions, are left under the
control of one publisher, the prices paid by the con-
sumer will probably be materially increased.

The supporters of International Copyright take
the ground, on the other hand, that when the
American people, who are lovers of fair play, are
once convinced of the justice of the claim of authors
(American and foreign) to control their productions,
and to receive compensation from all who are bene-
fited by these productions, this claim will be
promptly granted, whether it costs the public some-
thing to do so or not.

442 THE QUESTION OF COPYRIGHT.

Those who are familiar with the business of mak-
ing and selling books assert further, moreover, that
a copyright measure will have the effect of lessening
the price of all the better classes of books, which
are of the most importance for the higher education
and cultivation of the people, and of increasing the
supplies of these; and that the only publications
which will be increased in price are the cheapest
issues of foreign fiction ; and in support of this con-
clusion they ask attention to the following consider-
ations:

First. It is in order to bear in mind that the
conditions of the literature now in existence can, of
course, not be affected by any copyright measure,
as no such measure could be made retroactive, and
there is, therefore, no foundation for the vague
assertion which has occasionally been made, that
" the people are to be asked to pay more for their
Macaulay and Tennyson."

Second. It is to be remembered that the so-called
" Libraries," which have been supplying foreign
novels at fifteen and twenty cents, after exhausting
the books really worth reprinting, and after includ-
ing in their lists (under the necessity of a periodical
issue) a large mass of indifferent and undesirable
material, by no means deserving the attention of
American readers, are now in great part being dis-
continued, partly because of the exhaustion of re-
printable material, and partly, also, because they are
not profitable undertakings. One reason why these
"Libraries" are proving unremunerative is unques-
tionably because of a change in the taste and in the

judgment of buyers of books, who are beginning to
understand that they secure better value in paying
fifty cents or seventy-five for a decently printed vol-
ume, that can be preserved for the use of a number
of readers, than in expending fifteen or twenty cents
for a flimsy quarto, fit only to be thrown away after
one reading.

Third. A large number of important English and
Continental works, American editions of which
would prove of material service to American stu-
dents and readers, it is not practicable, under the
present state of things, for American publishers to
undertake at all, as, in case their reprints are favora-
bly received, any prospect of profit from these is
promptly destroyed by the competition of rival and
unauthorized editions, which secure the advantage
of their literary judgment and their advertising.
Such American readers as are obliged to purchase
this class of works must, as a result, pay the cost of
the expensive and often unsuitable foreign editions,
while (as such editions cannot be adequately adver-
tised) a large number of readers to whom such books
would be of service are never even made aware of
their existence. An immediate result of an Inter-
national Copyright would be the reprinting of inex-
pensive editions, suited for the wants of a large cir-
cle of impecunious buyers, of a number of European
works now brought into this country only in expen-
sive "limited" editions.

Fourth. An International Copyright will render
practicable a large number of international under-
takings which cannot be ventured upon without the

444 THE QUESTION OF COPYRIGHT.

assured control of several markets. The volumes
for these international series will be secured from
the leading writers of the world, American, English,
and Continental, and the compensation paid to
these writers, together with the cost of the produc-
tion of illustrations, maps, tables, etc., will be di-
vided between the several editions. The lower the
proportion of this first outlay to be charged to the
American edition, the lower the price at which this
can be furnished ; and as the publisher secures the
most satisfactory returns from large sales to a wide
circle, the lower the price at which it will be fur-
nished.

It would not be quite correct to say that these
international series would be cheaper than at pres-
ent, for there are as yet hardly any examples of
them ; but it is the case that by means of such series
(only adequately possible under International Copy-
right) American readers will secure the best litera-
ture of leading contemporary writers at far lower
prices than can ever otherwise be practicable.

Fifth. The higher prices of current English books
are cited as examples of what American readers
would under a copyright be compelled to pay for
American editions of similar works. It is, however,
easy to show that the selling price of books de-
pends, not upon the conditions of copyright, but
upon the requirements of the market. Books are
first issued in England in the high-priced editions,
because under the English system the first demand
for new publications is largely through the circu-
lating libraries, which have encouraged the main-

tenance of prices sufficiently high to hinder the
buying of books. There is also the further reason
that in England the readers and buyers of books
belong in much larger proportions to the wealthy
classes than is the case in the United States.

In France and Germany, on the other hand, coun-
tries fully under the control of copyright, both
domestic and international, the first issues of stand-
ard and current publications, both copyright and
non-copyright, are cheaper than anywhere else in
the world.

In Paris, for instance, a beautifully printed and
beautifully illustrated edition of such a book as
Daudet's Tartarin dans les Alpes is published at
seventy cents, and this is one example of many. In
Berlin, we find such series as Das Wissen der
Gegenwart, " The Knowledge of the Present," is-
sued in handsomely printed, well-illustrated, and
neatly bound volumes, of which sixty-two are now
ready, selling at one mark, twenty-five cents, each.
The works in this series are written especially for
it by the leading scholars and scientists of the Con-
tinent, and this series is one of many. The Leipsic
publisher, Tauchnitz, possesses, under the present
International Copyright system of Europe, a practi-
cal " monopoly " for the sale on the Continent of
his cheap reprints, in English, of the works pur-
chased by him from English authors. He does not,
however, take advantage of such "monopoly" to
attempt to extort high prices from his readers, sim-
ply because there would be no profit in making any
such attempt. He sells these copyright books, in

446 THE QUESTION OF COPYRIGHT.

complete and well-printed volumes, at one and a
half marks, or thirty-six cents, each.

American publishers controlling, under a similar
copyright, the sale of similar books for a market of
sixty millions of people, would in like manner find
it to their advantage to supply this market with
low-priced editions planned for popular sale, simply
because high-priced editions could not be sold.

It is also the case that, since the establishment of
International Copyright between the different states
of Germany and the several countries of Europe,
there has been a steady decrease in the prices, in
these countries, of standard and current literature,
copyright as well as non-copyright, and a marked
impetus has been given to publishing undertakings
of service to the community.

As Mr. Brander Matthews has well pointed out,
the cheapest books to be bought to-day in the
United States are mostly inferior stories by con-
temporary English novelists, while the cheapest
books to be bought to-day in Europe are the best
works by the best authors of all times. In Amer-
ica, where the system, or lack of system, of " open
publishing" prevails, the cheapest books are the
least important and often the least desirable. In
Europe, where International Copyright is in force,
the best books are the cheapest. The absence of In-
ternational Copyright encourages bad books or poor
books, and discourages good books.

Such examples show that the selling price of a
book depends not on the copyright but on the ex-
tent of the market that can be assured for it. With-

out an International Copyright no assured market
is possible, and no low-priced international series
can be planned or prepared for American readers.

Sixth. A reduction can also be looked for in the
selling price of certain lines of American fiction and
other current literature. Under the present " cut-
throat " competition, the publishers of the works
of such authors as Howells, James, Aldrich, Bret
Harte, and other leading American writers have
practically given up the attempt to compete with
the unpaid-for reprints of foreign writers. Know-
ing that they can depend upon certain (compara-
tively limited) circles of readers, they find it to be
more profitable to obtain from these readers the
highest prices they are willing to pay. When, on
the other hand, the foreign works are put on the
same footing as those of American writers, the pub-
lishers of the latter will find it to their interest to
plan for the widest popular sale, and for this pur-
pose will at once issue their books at popular prices.

The possibility of exporting stereotype plates or
editions of standard American works will also lessen
the proportion of first outlay to be charged to the
American edition, and will enable this to be sold
profitably at lower prices than would otherwise be
practicable. An example of the advantage given to
the American buyer by such an export arrangement
is afforded by the great Latin Dictionary lately pub-
lished by the Harpers. Duplicate plates of this
were sold by the publishers for the edition issued
by the Clarendon Press, in Oxford, and the saving
secured from the proportion of the type-setting and

443 THE QUESTION OF COPYRIGHT.

editorial outlay charged to the English edition has
enabled the American publishers to sell the book in
this market much more cheaply than would other-
wise have been practicable.

To summarize — the selling price of books de-
pends not on the copyright, but on the require-
ments of the market and the extent of the market
that is controlled by the author and his represent-
ative.

American buyers are accustomed to cheap books,
and will not buy dear books, and the publishers are
not likely to throw away their money by making
dear books for which they could not find a sale.

The wider the markets and the greater the num-
ber of the editions between which the first outlays
can be divided, the smaller the cost of each edition
and of each copy, and the lower the price at which
each copy can be and will be supplied.

With assured markets, and an assured control to
authors and publishers of the results of their literary
undertakings, there will be a great increase in the
publication of international series, which will pro-
vide for American readers, at the lowest prices,
satisfactory editions of the works of the leading
writers of the world, American, English, and Con-
tinental.

New York, March 15, 1890. G. H. P.

XXV.

"COPYRIGHT," ''MONOPOLIES," AND
"PROTECTION."

Reprinted from The Literary World.

To the Editor of the Literary World :

The writer of an editorial in The Literary World
of January 7th (a number which, owing to a mis-
chance, has only to-day reached my desk), in refer-
ring to the organization of the Boston Copyright
Association, speaks of copyright as a " species of
protection." The words used are :

"For what is copyright but a species of protection? and what is
international copyright but a bulwark erected by protection against
free trade? From this point of view the spectacle of President
Eliot presiding at an international copyright meeting one day and
appearing the next as a sympathetic guest at an anti-tariff dinner is
one to be pondered."

This " point of view " shows, as it seems to me,
a confusion of thought based upon a misconception
of the actual meaning of the terms " protection "
and " free trade ; " and as such misconception has
before now stood in the way of a proper understand-
ing of the grounds on which are based the claims of
an author to the control of his productions, I think
it worth while to ask you to give me space to cor-
rect it.

The difficulty is really due to the poverty of our
29

450 THE QUESTION OF COPYRIGHT.

language, which uses the term " protection " to ex-
press two entirely different things, and the same is
true of the terms " free trade " and " monopoly,"
which also have been largely misapplied in the dis-
cussion of questions of copyright. The " protec-
tion " for which the author asks is simply his por-
tion of the benefit of the machinery organized by
society for the defence of individual property against
unauthorized appropriation. He is in the position
of a gardener whose labor has produced a crop of
strawberries, and who, in order to retain for his own
use the results of his labor, asks for his share of the
policeman.

In the sense, however, in which it is used in the
article in question the term stands for something
entirely different. The " protection " to which your
writer was referring is the system under which one
producer secures through legislation the impo-
sition of a tax upon the labor of another producer,
and by this means also secures the privilege of tax-
ing indirectly (to the extent of any increase caused
by such taxation in the average selling price) all the
consumers of the things produced.

The author, however, asks for no legislation of
this kind. In securing copyright for his History
of the United States, Professor McMaster secures
simply the control of the sales of his own work.
He does not ask the government to further the sale
of his history by putting a tax upon the production
or the sale of any other history of the United States,
for instance, that written by the foreigner Von
Hoist. The production of future histories of the

"copyright" and "protection." 451

United States, by American or foreign writers, is
not going to be impeded by any privilege conceded
to or demanded by McMaster. In like manner the
conceding to Justin McCarthy, under an interna-
tional copyright, of the control of his History of
Our Own Times, would, of course, in no manner
have stood in the way of the production of any
number of competing histories covering the same
period.

Mr. Henry Carey Baird takes the ground that
there is no propriety in giving to Von Hoist the
privilege of making money out of historical facts
and records which are the common property of all
Americans. Mr. Baird forgets, however, that these
facts and records are as much common property
after the publication of Von Hoist's history as they
were before. Von Hoist's privilege of copyright
(if conceded) has not enabled him to diminish in any
way the common stock of facts (as the nation's
stock of acres is diminished, for instance, by the
grants to the Pacific railroads). The stock of his-
torical facts available for the use of future writers
has, indeed, actually been increased by Von Hoist's
researches and labors. It is evident, therefore, that
copyright gives to the writer no property in facts or
ideas, but simply permits him to control the special
form in which he presents these facts and ideas, and
it is for this form only, and not for the ideas them-
selves, that he asks " protection."

The " free trader," in the accepted signification
of the term, and the person who is opposing copy-
right and talking about " free trade in books," are

452 THE QUESTION OF COPYRIGHT.

two very different individuals. The former claims
for each producer the liberty to do what he will with
that which he has produced, such liberty including
the right to procure in exchange for the same (sub-
ject only to the taxes necessary for the support of
the government and for his share of the policeman)
the products of any other producers, whether fel-
low-citizens or not. He wishes, for instance, to pur-
chase with money made out of wheat a ship built
on the Clyde, and he would be free to apply in this
way the results of his labor and thus to secure fur-
ther proceeds from these results if it were not for
the existence of an objecting individual or group of
individuals in Maine or Pennsylvania. The man who
talks about " free trade in books," however, meaning
thereby the right to appropriate what another has
produced, aims to obtain certain proceeds which he
could not have secured but for the existence and the
labor of another man, namely, the author of the
material to be appropriated

In like manner the opponent of any international
copyright, or the supporter of the misleading Pear-
sall-Smith scheme of " open publishing " (which
may be appropriately classified as " copywrong "),
describes as a " monopoly" the right of an author to
control the sale of his productions. The dictionary
justifies him in such use of the word, which means,
of course, " single sale," or sale controlled by a single
person. The term is, however, at present, in its
general use associated with something very different,
and its application to copyright is misleading and
unjustifiable.

"COPYRIGHT AND " PROTECTION. 453

The popular understanding of the term " monop-
oly " covers the appropriation, under legislation, by
an individual or a group of individuals, of some por-
tion of the property of the community or of the
facilities belonging to the community, which, if it
were not for such legislation, would remain free to
all. In this sense a Pacific railway, to which has
been conceded the sole use of a route across the
continent and the fee of some thousands of acres of
public lands, is a monopoly ; a horse railway, with a
charter for the exclusive use of certain public high-
ways, is a monopoly; and a telephone company,
with a patent under which it prevents the construc-
tion of other telephones, and with privileges, thus
made exclusive, for the use of its wires, of traversing
both public and private property, is a monopoly.
The control of a book by the man whose labor has
produced the book is not a monopoly, for the exist-
ence of such a book does not in any degree stand
in the way of the production and sale of any num-
ber of books of the same character, and addressed
to the same class of readers, and its production has
in no degree lessened the extent of the facilities or
of the property belonging to the public.

The importance of securing at this time, when
international copyright is a matter of pending legis-
lation, the widest possible understanding of the
grounds upon which rests the claim of the author
to the control of his productions, is my excuse for
troubling you with this letter.

New York, January 30, 1888.

XXVI.

SUMMARY OF THE EXISTING COPYRIGHT
LAWS OF THE MORE IMPORTANT
COUNTRIES OF THE WORLD (January,
1896.)

1. Argentine Republic. — No statute for the protection of intellec-
tual property has as yet been enacted. Article 17 of the Constitution
of i860 declares that property is to be held inviolable, and that no
citizen shall be deprived of the same except by process of law. The
article proceeds to state that each author and inventor is the exclusive
proprietor of his production or invention during the term specified
by the law, but the law itself is yet to be enacted. In its absence,
authors and artists secure a quasi-protection under certain provisions
of the civil code. The penal code of 1880 contained a provision for
the prohibition of literary piracy, with a penalty for infringement of
from $25 to $1000. In the code of 1887 this provision was, however,
omitted.

2. Austria (Empire). — Law of 1895. Literary and artistic works,
published during the life of the author, term, during author's life
and thirty years after his death : Works posthumous, or anony-
mous, or published under a pseudonym, thirty years from the
date of the first publication. Publications of learned societies
recognized by the Government, fifty years from the date of the
first publication ; right of the Government reserved to extend this
term by special privileges in favor of important works of science and
art. Exclusive rights of translation reserved to the author, on con-
dition of the publication being simultaneous with that of the original ;
in the contrary case, free right of translation permitted after the delay
of one year. Free right of arrangement of musical airs, at the ex-
piration of one year. Exclusive right of artistic reproduction reserved

SUMMARY. 455

to the artist, but on condition of reproducing the work within two
years ; in contrary case, free right of reproduction. Dramatic and
musical representations, performed during the life of the author :
copyright term, during his life and thirty years after his death.
Works posthumous, anonymous, collaborated, or published under a
pseudonym, thirty years from the date of first representation (term
increased, in 1894, from ten years). Interstate conventions, Ger-
many, 1867 and 1870; Italy, 1890; France, 1866; Great Britain,
1893.

3. Belgium (Kingdom). — Law of 1886. Works of literature and
of art, published during the life of the author, protected for his life
and for fifty years thereafter. (The previous term was for life and
for twenty years.) Posthumous works, fifty years from date of issue
or for works of art, from date of first exhibition. A work of collabo-
ration is protected for fifty years from the death of the surviving col-
laborator. The author and his representatives have full control of
the rights of translation and dramatization. The provisions of the
law are applicable to residents as well as to citizens. The condition
of printing in Belgium which obtained in the previous law is annulled.
Belgium was a party to the Berne Convention, and is in copyright re-
lations with the United States under the Act of 1891. Deposit of
three copies — one for the national library and two for the com-
munal administration.

4. Bolivia (Republic). — Law of 1S79. Term, life of the author
and fifty years. Deposit of three copies — one with the Minister of
Public Instruction, one with the governor of the district, one with the
national library. Concedes copyright to foreigners under reciprocal
conditions. Registration without charge. A party, since 1889, to
the Convention of Montevideo.

5. Brazil (Republic). — Law of 1890 (enacted under the Empire).
Terms for literary and artistic works, published during the life of the
author, life of author and ten years thereafter. Works published by
societies and corporations, ten years from the date of the first publi-
cation. A party since 1889, to the Convention of Montevideo.

6. Canada. — Term, forty-two years from date of publication. De-
posit of two copies. Requirements (with certain noteworthy excep-
tions) of manufacture within the Dominion. Authority vested in
the Minister of Agriculture to license the publication of Canadian
editions, under certain conditions. (See further summary on page
467 et sea.)

456 THE QUESTION OF COPYRIGHT.

7. Chili (Republic). — Act of 1834. Term, for literary and artistic
works published during the life of the author, for his life and for five
years after his death. Posthumous, ten years from first publication.
For works published in Chili by a foreigner, ten years from first pub-
lication. Deposit of three copies in the library of Santiago, obligatory.
Right of the Government to extend these terms. Term, for dramatic
and musical representations performed during the life of the author,
for his life, and for five years after his death. Posthumous works,
ten years from the date of the first representation. Right of the Gov-
ernment to extend these terms. Has accepted the Interstate Con-
vention of Montevideo.

8. C/iitia. — In theory, copyright is perpetual. There is, however,
no statute on the subject, and in practice the protection of a literary
production is hardly practicable. The author of modern times is
usually his own publisher. In case of piracy the usual penalty is
eighty blows with a stick and confiscation of the piratical production.
The protection of the magistrates can however be claimed only for
works of " pure literature " or of poetry. Authors of political works
or of romances can claim no privileges, and are in fact liable to pun-
ishment. The sole dependence for the author is the intelligence and
equity of the local magistrates. (Tcheng-Ki-Tong. Cited by Lyon-
Caen.)

9. Colombia. — Law of 1886, based on that of Spain of 1879.
Term, life of the author and eighty years thereafter. Deposit of
three copies, one with the Minister of Public Instruction and two in
the national library.

10. Costa Rica. — This State was represented at the Berne Con-
vention but did not become a party to the same. No copyright
statute has yet been enacted. In 1887, a provisional agreement was
entered into with the four other States of Central America for the
recognition of property in literary and art productions.

11. Denmark. — Law of 1868. Term, for literary works pub-
lished during the life of the author, during his life and for fifty years
thereafter. (Formerly life and thirty years.) Anonymous, col-
laborated works, and works published under a pseudonym, fifty
years from date of publication. Art works published during the life
of the author, for his life and for thirty years thereafter. Dramatic
and musical works first represented during the life of the author,
for his life and for thirty years thereafter. The control of the author
terminates however, if no representation of the work has been made

SUMMARY. 457

during the five years. Interstate conventions. Admission of the
principle of reciprocity. Convention with France in 1866, with the
United States in 1S91.

12. Ecuador. — Law of 1887. Term, life of the author and fifty
years thereafter. Deposit of three copies, one for the library of the
province, one for the national library, and one for the Minister of
Public Instruction.

13. Egypt. — No general law has yet been enacted. Cases of
copyright are decided by the judges " according to the principles
of natural art and the rules of equity." On this basis, the Court
of Appeals in Alexandria has, since 1887, given several decisions
in favor of the protection of productions in art, music, and litera-
ture. In these decisions no term of copyright has been specified
or referred to. They may, therefore, be compared to the deci-
sions in the English courts, prior to the statute of 1 7 10, under
which decisions copyright was assumed to exist under the common
law and in perpetuity.

14. Finland (Grand Duchy). — Act of 1880. The term is for the
life of the author and fifty years thereafter. Privileges of copyright
extended not only to citizens but to residents who make publication
in the country. Deposit of two copies. The law is in substance
identical with that of Russia, but differs in certain details.

15. France (Republic). — Act of the Corps-Legislatif (of the Em-
pire), of July 14, 1866, approved by Napoleon, Emperor. The
duration of term of copyright, accorded under previous legislation,
for the works of authors, artists, and composers, is extended from
the lifetime of the author and thirty years, to the lifetime and fifty
years, whether for widow, children, direct heirs, indirect heirs, lega-
tees, or assigns. In the cases in which the estate of the deceased
author becomes the property of the State, the copyright is terminated
with the death of the author, and the work falls into the public do-
main. Works published posthumously are subject to the same term
of copyright as obtains for those published during the lifetime of the
author. Authors who are citizens or residents of other States enjoy,
for works first published in France, the same rights and term of copy-
right as those given to French authors. (This provision is met by
simultaneous publication.) Two copies of all works copyrighted
must be deposited at the Ministry of the Interior, or (for transmis-
sion) at the prefectures of the departments. The same regulations
and the same term of copyright apply in the cases of works of art.

458 THE QUESTION OF COPYRIGHT.

The term of copyright is also the same for dramatic and musical
compositions, and no representation of such compositions can be
given without the written permission of the authors or composers.
The conditions of international copyright have been, since 1887,
regulated by the provisions of the Convention of Berne. In addition
to the States with which it is in relation through the Berne Conven-
tion, France has entered into literary conventions with the following
states which are not parties to the Berne Convention : Austria,
Hungary, 1886 ; Bolivia, 1888 ; Holland, 1856 ; Mexico, 1SS6 ;
Portugal, 1866 ; Russia, 1861 (this convention was cancelled by
Russia in 18S7 and has not since been renewed) ; Salvador, 1880 ;
Sweden and Norway, 18S4 ; United States, 1891.

16. Germany, — Law of the Empire, June 11, 1870. This law
applied to all the states of the Empire except Bavaria. It was ap-
plied to Bavaria January I, 1872, and to Alsace-Lorraine, January
1, 1S73. Registration of copyright is made at Leipsic. Deposit of
a single copy. Term, for literary and artistic works published during
the life of the author, is for his life and thirty years thereafter.
Posthumous and anonymous works and works published under a
pseudonym, thirty years from the date of the first publication. Pub-
lications of learned societies, thirty years from the date of first publi-
cation. Dramatic and musical productions, ten years from the first
representation, provided the work represented has not before been
printed. No protection is given under this heading for anonymous
productions. The Empire is a party to the Berne Convention. On
January 15, 1892, a copyright convention was completed with the
United States under which Germany accepted the provisions of
the American Act of 1891. Under this convention, the citizens of
the United States possess in Germany the same privileges that belong
under the German act to the citizens and residents of the Empire.
In like manner, the privileges possessed in the United States under
the American act by American citizens and residents are extended to
the citizens of Germany. The criticism was at once made in Ger-
many, and has since been repeated with increasing acerbity, that this
arrangement did not constitute an equitable reciprocity, and was
much to the disadvantage of the German producers of copyright
property. The provisions in the American law making copyright
conditional on simultaneous publication and on the manufacturing of
the work in the United States, place serious obstacles in the way of
German writers desiring to secure for their works American copy-

SUMMARY. 459

right. Similar complaints are being made with equal justice on
behalf of the authors of France and Italy. The condition of simul-
taneous publication, while creating occasional differences in the case
of English authors, becomes of necessity much more serious when
arrangement must be made not only for publication and for printing
but also for translating.

17. Great Britain. — The law at present in force in Great Britain
is in substance that enacted in 1842. While this law has been
amended in certain of its details, the main provisions, including the
term of protection for literary property, remain as in the original act.
A summary of the existing laws together with the digest prepared by
Sir James Stephen, will be found in a previous division of this
volume. The term of copyright covers the life of the author and
seven years thereafter, or a period of forty-two years from the date of
publication of the work, whichever term be the longer. A deposit
of five copies is required, one for the British Museum, and one for
each of the four libraries designated in the Act. Registration is not
compulsory. Great Britain is a party to the Berne Convention. In
addition to the states with which it is in relation through the Berne
Convention, Great Britain has entered into literary conventions with
the following, which are not parties to the Berne Convention : Aus-
tria-Hungary, 1893 ; Brazil, 1884 ; Dominican Republic, 1894 ;
Mexico, 1S93 ; Netherlands, 1884 ; Netherlands, East India Colo-
nies, 18S8 ; Netherlands, Curacoa, Surinam, etc., 1890; Paraguay,
18S6; Portugal, 1884; Servia, 1884; Sweden and Norway, 1895;
Uraguay, 1886; United States, 1891.

18. Greece (Kingdom). — Law of 1833 ; amended in 1867. Literary
and artistic works, term, fifteen years from the date of first publica-
tion. Right of the Government to extend this term. Admission of
the principle of reciprocity. Deposit of two copies.

19. Guatemala (Republic). — Law of 1879 ; copyright is recognized
under this law as existing in perpetuity for the author, the heirs of
the author, or their assignees.

20. Hawaii (Republic). — Law of 1888 (enacted under the king-
dom). Term, twenty years from the date of publication. Deposit of
one copy. Registration fee of $5 to be paid to the Minister of the
Interior.

21. Hayti (Republic). — Law of 1885 Term, for the life of the
author, and if the copyright be inherited by the children of the
author, for twenty years thereafter. If the inheritance goes to heirs

460 THE QUESTION OF COPYRIGHT.

other than children or to assignees of the author, the term is for ten
years from the author's death. Deposit of two copies. A party to
the Convention of Berne.

22. Holland (Kingdom).— Law of 1881. Term, for printed works
printed within the lifetime of the author, fifty years from date of pub-
lication of first edition (former term, life of the author and twenty
years). Obligation to print the work within the kingdom and to de-
posit two copies with the Minister of Justice. Term, for works not
printed during the life of the author, thirty years from the date of his
death. Conventions with Belgium, 1858, and with France, 1855,
i860, and 1884.

23. Hungary (Kingdom).— Law of 1887. Term, life of the author
and fifty years thereafter. Posthumous works, fifty years from the
death of the author. Residents other than citizens who make first
publication in the country are entitled to the privileges of the law.
Deposit of two copies with the Minister of Agriculture.

24. Honduras (Republic).— The Civil code of 1 880 contains the dec-
laration that the productions or inventions of the mind are the prop-
erty of the producers. No copyright statute has as yet been enacted.

25. Italy (Kingdom).— Law of 1882. Works of literature and art
published during the lifetime of the author : term, during his life and
forty years from date of first publication. At the close of that term
the works are open to publication ; but during the second term of
forty years, the publishers must pay to the owner of the copyright a
royalty of five per cent. Term for musical and dramatic composi-
tions, eighty years from the first presentation. Exclusive right of
translation reserved to author, and of reproduction to the artist, for a
term of ten years. Deposit of two copies with the Prefect of the
Province. Publication of the State and of learned societies : term,
twenty years from the date of issue. The term for musical and
dramatic compositions, the same as for works of literature ; such
compositions, are, however, open to any one to produce or present on
the payment of a royalty or proportion of profits. International con-
ditions subject to the Convention of Berne. Copyright relations with
the United States since October 31, 1892, under the Act of 1891.

26. Japan (Empire). — Act of 1887. Term, life of the author and
five years thereafter, or thirty-five years from the date of publication
(whichever term be the longer), for works of literature, art, and music.
Fee for registration, the equivalent of the price of six copies of the
work. Term, for photographs, ten years from date of registration.

SUMMARY. 461

The Government has under consideration (December, 1895) accept-
ance of the Convention of Berne.

27. Luxembourg (Grand Duchy). — Act of 181 7. Term, life of the
author and twenty years. Has accepted the Convention of Berne.

28. Mexico (Republic).— Act 1871. The copyright of new literary
productions is made perpetual (the former term having been life of
the author and ten years thereafter), and the author possesses the
same rights in regard to its assignment and alienation as obtain in
the case of material property. The heirs and assigns succeed to the
full rights of the original producers, retaining control in perpetuity.
In case the author, having assigned the copy of a work, has later re-
shaped such work, making changes that are " substantial and mate-
rial," he will be at liberty, as if it were a new work, to control the
copyright of the same, without prejudice, however, to the ownership
of the copyright of the work as first issued. The term of a dramatic
production, covering stage rights, is for the life of the author and
thirty years. Of works of literature and of art a deposit of two
copies is required, one in the national library, and one in the archives
of the Minister of Instruction. Works of art may be deposited in the
form of a photograph or reproduction of the original design. Copy-
right is granted to residents as well as to citizens. The principle of
reciprocity is accepted.

29. Monaco (Principality). — Ordinance of 1889. Term, life of the
author and fifty years. A party to the Convention of Berne.

30. Montenegro (Principality). — Act of 1889. Term, life of the
author and thirty years thereafter. Accepts the Convention of Berne.

31. Norway (Kingdom). — Act of 1876. Term, for works of litera-
ture and art, life and fifty years (former terms, life and twenty years).

32. Paraguay (Republic). — The law of 1862, passed under the rule
of the Dictator Lopez, has fallen into desuetude, and the record and
text of the Act have been lost. No statute is at this time in force.

33. Peru (Republic). — Law of 1849. Term, for literature and for
art, life and twenty years thereafter. Posthumous works, thirty
years from date of publication. Deposit of one copy in the national
library.

34. Porhigal (Kingdom). — Act of 1867. Term, for literature and
for art, life of the author and fifty years thereafter. (Formerly,
twenty years.) The term for a translation of a work, the original of
which is out of copyright, covers (for the translator's version only)
thirty years from date of publication. Publications of societies, fifty

462 THE QUESTION OF COPYRIGHT.

years from date of publication. Works published in series, fifty
years for each division or volume from date of publication of such
division. Of works of literature, a deposit of two copies is required
in the royal library in Lisbon ; for a work of art one copy of a repro-
duction must be deposited in the Academy of Fine Arts. The term
for posthumous works is twenty-five or fifty years from date of first
publication, according to the class. The Government reserves the
right to authorize for the service of the public, and in consideration
of the payment of an indemnity to the owner, the publication of the
abridgment of, or of extracts from, works which are still protected
by copyright. Dramatic and musical representations performed dur-
ing the life of the author, term, during his life and thirty years there-
after. Posthumous works, thirty years from date of first publication.
Unless, however, there be stipulation to the contrary, each theatre,
after the death of the author, is free to make presentation of his works
on payment of a fixed honorarium. A remuneration is due to the
Royal Conservatory for representing translated dramatic works which
have fallen into the public domain. Admission of the principle of
reciprocity. Conventions with Belgium, 1866; France, 1851 and
i860 ; Spain, i860 ; and the United States, 1S94.

35. Russia (Empire). — Exclusive of Finland. Act of 1857.
Works of literature published during the life of the author ; term,
for his life and fifty years after his death (formerly life and thirty
years). Posthumous works, fifty years from the date of the first pub-
lication. Learned societies, fifty years from the date of the first
publication. Deposit of two copies, one with the Bureau of Censor-
ship and one in the imperial library. The supervision of the copy-
right regulations rests with the minister or Intendant of the Palace
(Le minislre de la Maisou). The control of the censorship (upon
which copyright is conditioned) is placed with the Bureau of Censor-
ship. For scientific books, there is a special provision in the law
under which the exclusive right of translation is reserved to the author
with the condition that the announcement of the reservation be
printed in the original volume, and that the translation be published
within three years. Russian authors retain for their works first pub-
lished in foreign countries the control of the Russian copyright. It
is obligatory to make registration of works of art. The reproduction
in sculpture of a design originally produced in painting or the con-
verse is not considered to be an infringement of the artist's copyright.
The author of a work of literature who prints notice of the reserva-

SUMMARY. 463

tion of such rights controls the dramatization of his production.
Dramatic and musical representations can be made only with the
consent of the authors or composers of the works. Convention with
Belgium, 1862. A convention made with France in 1S61 was can-
celled in 1887. French, English, and German works are " appropri-
ated" at the convenience of Russian publishers. There is, however,
a considerable importation of the authorized editions of the current
publishers of all three countries.

36. Salvador (Republic). — No copyright statute. The civil code
of 1880 declares that the productions of the mind are the property of
the producers.

37. Servia (Kingdom). — Copyright law similar in general terms to
that of Austria-Hungary is at this time (January, 1896) under con-
sideration.

38. South African Republic (The Transvaal). — Law of 1887.
Term, fifty years from date of publication.

39. Spain (Kingdom). — Act of 1879. Term, life and eighty years
(formerly life and fifty years), provided that the author is, at the time
of his death, in possession of his copyrights, and provided, further,
that he leaves direct heirs. In case the copyright has been assigned
by the author, the assignee retains control for the life of the author
and for twenty-five years thereafter, after which term it reverts to
the heirs, who have control for a further term of twenty-five years.
This term covers the cases of original works in literature and art,
collections of discourses and translations (in verse) of original works
in modern languages, published during the life of the author. For
discourses, sermons, and newspaper articles that are not united in
collections published during the life of the author, the term is for his
life and twenty-five years thereafter, but with no exclusive privilege
of translation. Anonymous works and those published under a
pseudonym, term, during the life of the editor, and for fifty or
twenty-five years after his death, according to the class of the work,
as above. Works of learned societies, fifty years from date of the
first publication. Unedited MSS., twenty-five years after the date
of the first publication. Posthumous works, fifty or twenty-five
years after date of first publication, according to the class. The
Government reserves the right to authorize, " for the service of the
public," the publication of abridgments of, or extracts from, works
constituting private property, in consideration of an indemnity. De-
posit of three copies is required, one for the library of the Province,

464 THE QUESTION OF COPYRIGHT.

one for the Minister of Instruction, and one for the national library.
Spanish authors retain the right of property in works originally pub-
lished by them in foreign countries. The term for representations,
dramatic and musical, performed during the life of the author, is for
his life and twenty-five years thereafter. The term of copyright in-
stituted by Spain is the longest adopted in any State excepting Mexico
and Venezuela. Spain is a party to the Berne Convention, and has
also entered into international copyright relations with the United
States, under the Act of 1891. It has conventions in force with Hol-
land and with Portugal.

40. Sweden (Kingdom). — Act of 1S77. Term, for works of liter-
ature, life and fifty years (formerly life and twenty years) ; for works
of art, life of the producer and ten years.

41. Switzerland (Republic). — Act of 1883. Term, life of the
author and thirty years (formerly life or thirty years, whichever term
were the longer). Swiss authors retain their property rights for
Switzerland in works originally issued in foreign lands, on condition
of their making registration of the same and of depositing a copy in
the national library. Switzerland is a party to the Convention of
Berne, and has copyright relations with the United States dating from
July, 1891.

42. Tunis (Principality). — Law of 18S9. Term, the life of the
author and fifty years. A party to the Convention of Berne.

43. Turkey (Empire). — Firmans of 1872, 1875, 188S. The
legislation of Turkey still retains for the protection of literary prop-
erty the medioeval system of privileges. The author secures on
application, a protection for his work for life or for a term of forty
years from the date of publication. Copyright for the unexpired
term can be assigned or bequeathed. The right to control a transla-
tion must be specified. The term for the translation is twenty years
from the date of publication. An authorization for publication (con-
stituting a censorship's permit) must be secured from the Minister of
Instruction. Deposit of two copies, one for the Minister of Instruc-
tion and one for the Government of the Province.

44. Uruguay (Republic). — No copyright statute as yet enacted.
The civil code of 1868 declares that the productions of the mind are
the property of the producer.

45. United States (Republic). — Law of July, 1870, and March,
1891, amended, March, 1895. (For details of these statutes see
separate chapter.) The term for works of literature and for works of

SUMMARY. 465

art is for twenty-eight years from the date of registration and publi-
cation. If at the end of that term the author or the author's widow
or children be living and an application is made for the purpose, the
copyright is extended for a further term of fourteen years, making
forty-two years in all. Under the Act of 1S91, the United States has
entered into copyright relations in July 1891, with Belgium, France,
Great Britain, and Switzerland ; in 1S92, with Italy ; in 1893, with
Portugal and Denmark ; and in 1895, with Spain. In 1892, a copy-
right convention or treaty was put into effect with Germany.

46. Venezuela (Republic). — Act of 1S80. The term is in per-
petuity for the author and his heirs. (Previous term, life and fourteen
years.) If the copyright has been assigned, the control of the pro-
ducer ceases twenty-five years after the death of the author, and the
property reverts to the heirs for perpetuity. A deposit of four copies
is required, one for the local institute of the province, one for the
Minister of Instruction, one for the library of the University of Car-
acas, and one for the Academy of Venezuela. A party to the Con-
vention of Montevideo.

It will be noted from the above summary that practically all the
literature-producing States of the world have now in force measures
for the protection of literary property. The Argentine Republic is in
fact the only country with any considerable educated population in
which no copyright statute has yet been enacted. The state with the
shortest term of copyright is Greece, and next to Greece comes the
United States. The states giving protection in perpetuity are Mexico
and Venezuela. The states giving the longest statutory term of pro-
tection are Spain and Italy. There has been during the past twenty-
five years a steady tendency for the increase of the term of the copy-
right. The term that is now accepted by the majority of the states
of Europe is the life of the author and fifty years thereafter. The
theory of this term is that it gives to the author an incentive for pro-
ducing property for the enjoyment of his children and his grandchil-
dren, with the possibility also of future enjoyment by the great-
grandchildren. Beyond that term, the interest of the public at large
in securing the widest distribution, at the least cost, of literature of
permanent value, is assumed to offset such attenuated interest as an
author may be supposed to retain in the remote progeny beyond the
30

466 THE QUESTION OF COPYRIGHT.

generation of his grandchildren. The steps that are now being taken
to extend the term of copyright in Great Britain, the country in
which, as in the United States, the present term is very much shorter
than has been accepted as equitable for the rest of Europe, are speci-
fied in a preceding chapter. I trust that it may be practicable in
later editions of this volume to make reference to some similar efforts
for the extension of literary property in the United States.

XXVII.
THE STATUS OF CANADA, JANUARY, 1896.

The position of Canada in regard to its copyright
relations with Great Britain and with the States with
which the British Government has entered into copy-
right conventions, has for some years been an anoma-
lous one. The authorities of the Home government
have heretofore maintained that copyright was a
matter belonging to imperial control, and that the
British copyright legislation and the British conven-
tions with foreign states were to be held as binding
upon all the territories and colonies of the Empire.
With this understanding, the representatives of Great
Britain at the Convention of Berne accepted the pro-
visions of that Convention for Great Britain and for
all the British colonies. The Dominion of Canada
has, however, declined to be bound by the action of
the Home government. It is the Canadian view
that both copyright and patent-right are matters
which belong properly within the control of the
Dominion. Acting on this contention, the Do-
minion government gave but a provisional assent
to the Convention of Berne, reserving the right to

468 THE QUESTION OF COPYRIGHT.

withdraw after a year's notice, and such notice has
since been given.

The House of Lords held in 1868, in the case of
Routledge vs. Low, that a copyright existing in the
United Kingdom, is valid throughout all parts of
the British dominions, even though there may be
colonial statutes dealing with the same subject.
Under the colonial copyright act of 1847, known
as the Foreign Reprints Act, it was provided that
upon a British possession passing an Act or ordi-
nance sufficient for the purpose of securing to British
authors reasonable protection within such posses-
sions, it should be lawful for her Majesty, by an
Order in Council, to declare the prohibition against
the importation of foreign books suspended for
such territory. This provision became applicable
to Canada in 1858. After that date, reprints from
the United States of English copyright books could
be imported into the Dominion on the payment of
an import duty of 12^ per cent., the receipts from
which duty were to be transmitted to the several
authors concerned. According to the testimony of
the English authors, however, their receipts from
this source have been very inconsiderable. This
duty has since been changed to one of 12^ cents
per pound.

In 1S89, a copyright act was passed by the Legis-
lature of the Dominion of which the main provisions
were as follows :

1. The control of the copyright of works of litera-
ture or of art was given for a term of twenty-eight
years to residents of the Dominion or of any portion

THE STATUS OF CANADA. 469

of the British Empire, subject to the conditions
specified.

2. The work so copyrighted must be printed or
produced within the territory of the Dominion, within
one month after the date of production in the coun-
try of origin, and must be duly registered in the
office of the Minister of Agriculture.

3. In case within this term of one month no Cana-
dian edition should be produced by the author or his
representative, the work shall be opened to produc-
tion by any Canadian resident who shall obtain
a license for the purpose from the Minister of
Agriculture.

4. A license was to be granted to any applicant
who should agree to pay to the author or to his
representatives a royalty of ten per cent, on the
retail price of each copy printed or issued, and who
should give to the Minister of Agriculture satisfac-
tory security for such payments. Such license was
to convey no exclusive rights to the work, and
was not to prevent the importation of any other
authorized editions.

The British authors made strong and continued
protests against an Act which would take out of their
hands the privilege of selecting their own publishers
for the Dominion, and which was likely to work
mischief with their relations with the publishers of
their authorized editions in the United States. After
the American Act of 1891 had secured for British
authors copyright in the United States, their opposi-
tion became still more determined against a measure
which was certain to bring their American copyright

470 THE QUESTION OF COPYRIGHT.

into peril. The Imperial government refused to give
its approval to the Canadian Act, and after an acri-
monious correspondence between the Canadian au-
thorities and the Colonial office, which extended
over a number of years, the Act was, in 1895, finally
withdrawn.

In 1895, at the instance of Mr. Hall Caine and of
Mr. F. R. Daldy, who came to Canada as the repre-
sentatives of the Colonial office and of the British
Society of Authors, a new act was framed in Ottawa
which is expected to secure the approval of the
British Government, and which will in that case
go into effect in 1896. Its chief provisions are as
follows :

1. The work securing Canadian copyright must be
printed in the Dominion, but the importation of
plates is permitted. (In the American Act such im-
portation is prohibited.)

2. The term is made forty-two years from date of
publication.

3. The registration in Ottawa must, for a book not
originating in Canada, be made simultaneous with
the registration in the country of origin.

4. Three copies of the copyrighted book must be
delivered at Ottawa.

5. The Canadian edition must be produced within
sixty days of the date of registration, but the Minister
of Agriculture may, for sufficient cause, allow an ex-
tension to ninety days.

6. From the day of registration, the importation
of copies of any edition other than one produced
within the United Kingdom must cease. Copies of

THE STATUS OF CANADA. 47 1

a British edition can continue to be imported during
the term of sixty or of ninety days within which
term the Canadian edition must be in readiness.

7. Copyright can be secured in Canada by the
citizens of any country which grants cop3'right to
citizens of the British Empire.

8. The English or foreign author, or his represen-
tative (usually, of course, the English, American, or
Continental publisher), has the option either of him-
self producing the Canadian edition, or of leaving
such edition to be produced by a Canadian publisher,
acting under a license.

9. In case, within the term specified, no edition
has been produced by the author's representative,
the Minister of Agriculture shall be at liberty to
issue a license to a Canadian applicant, but not more
than one license shall be in force at any one time.
The licensee shall pay to the author through the
Department of Inland Revenue, a royalty of ten
per cent., making payment in advance on the print-
ing of such edition, the editions thus paid for to
comprise not less than 500 copies. Each copy on
which royalty has been paid is to be stamped by the
Department of Inland Revenue.

10. Copyright books going out of print must be
reprinted within sixty days, otherwise a license may
be issued.

11. Books published under license are to be printed
within thirty daj^s after issue of license, but the Minis-
ter may for adequate cause allow an extension of
thirty days.

12. An author has the privilege of arranging for

472 THE QUESTION OF COPYRIGHT.

exclusive serial publication in Canada, and if he fail
so to do, application may be made to the Minister
for a license to publish serially. Serial license car-
ries with it no right to publish the material in any
other form.

The draft of the Act which is before me at the
time this summary is being prepared for the com-
positor, makes no specification concerning the status
of books for which no Canadian editions may have
been arranged, either under the author's instructions,
or (in the absence of such instructions) under a
license from the Minister of Agriculture. It is evi-
dent that, in the ordinary course of trade, but a small
percentage of the current publications of each year
can be available for Canadian editions, as it is only
the exceptional work that can be made to pay in an
edition printed for so small a reading public as that
of Canada. In the absence of any specific provision
for such books, I can only assume that their status
will be as at present ; and this understanding is con-
firmed by Mr. Caine's analysis which follows.

If, therefore, no Canadian edition may have been
printed under the provisions of this Act, a work
which has been copyrighted in Great Britain, or
which has secured British copyright under the Berne
Convention, under the American act, or under any
other interstate convention, will be entitled to copy-
right protection within the Dominion. For such
books, the right to secure a license for a Canadian
edition will, however, continue. After the publica-
tion of such licensed edition, however long such
publication may be deferred, the importation of the

THE STATUS OF CANADA. 473

English or American edition must, under the pro-
visions of the present act, be prohibited. I judge,
however, that it will in practice prove very difficult
to enforce such prohibition in the case of books the
importation of which has continued during any suc-
cessive seasons.

It is probable that the full bearing of the Act will
not be understood until the courts have had oppor-
tunities of passing upon its provisions.

In January, 1896, a memorial was formulated by
representatives of various associations in France in-
terested in literary and artistic copyright, protesting
against the approval by the British Government of
any Canadian act which made Canadian manufacture
a condition of copyright. It was the conclusion of
these remonstrants that if such a law should go into
force, it would be necessary to exclude Canada from
the Berne Convention. This French contention
seems to me to be well founded. I judge, however,
that Canada will probably elect to be excluded from
the provisions of the Berne Convention rather than
to give up the right of making printing in Canada a
condition of Canadian copyright.

Mr. Caine gives the following analysis of the pro-
visions and of the probable working of the pro-
posed Act :

1. Such an Act would be limited in its operation
to the works of the popular authors. This would
meet one of the objections of Mr. Goldwin Smith to
the clause requiring that a book should be printed
in the Dominion.

2. If a book would not pay to print and publish

474 THE QUESTION OF COPYRIGHT.

in Canada, it would not therefore fail of copyright
there. The original edition could go into the Do-
minion, as at present, during the whole term of its
copyright in the country of its origin. This would
meet the case described in the valuable letter of Mr.
Herbert Spencer.

3. Though a new writer might lose his copyright
in America by failing to comply with the American
Copyright Act, he would not on that ground lose his
copyright in Canada, where he would hold it abso-
lutely until the end of his term.

4. Such an Act would not exclude from Canada the
English book which had been copyrighted in the
United States but never registered or licensed in the
Dominion, but it would exclude the American re-
print of a book which had been registered or licensed,
and it would also exclude the English colonial re-
print, which was meant to meet a condition that is
gone — the condition of general piracy in the United
States — and would then be useless and mischievous ;
and it would also exclude the English edition after
the publication of the Canadian edition.

5. Our understanding with the United States
would not be endangered, because American authors
would enjoy the same privileges and be under the
same obligations as English authors.

6. Such an Act would not imperil the great ad-
vantages to English authors of American copyright,
because it would put it within the author's control
(both under the condition of registration and under
the condition of license) to see that his American
market could not be injured in Canada.

THE STATUS OF CANADA. 475

7. Such an Act should not be inconsistent with
the spirit of the Berne Convention. As the excel-
lent report of the departmental representatives
(1892) very properly says : " The Convention merely
stipulates that foreign copyright owners are to be
entitled to the same rights and privileges as British
copyright owners, and if the rights of British copy-
right owners are cut down by such licenses, foreign
copyright owners are not entitled to complain of
their rights being cut down to a similar extent.

8. Such an Act ought to enable the Dominion
Government to withdraw its application to denounce
the Berne Convention, and so to remove the danger
under which Canadian authors now stand of being
put into a position of isolation.

9. The interposition of a Government department
(the Department of Agriculture) in the publishing
industry of Canada — now perplexed by the uncer-
tainties of the Foreign Reprints Act, and threatened
with the intricacies of the proposed legislation of
1889 — would be confined to a single and simple
transaction, which would probably be the less fre-
quent form of arrangement.

G. H. P.

INDEX.

Abridgments and abstracts, Copy-
right in, 229, 373

Act of Congress of March 3 , 1 8g 1 ,
12-13

Acts, Earliest, in relation to Copy-
right, 28

Adams, G. E., 55, 56

Adams, Judge, 186

Aliens, Right of, to Copyright in
the British Dominions, 192

Allen, Henry G., 178

Ames, Prof. J. B., on disseizin
of chattels, 330

American authors and European
readers, ib^ff.

American books pirated in Eng-
land, 383/: /

AmericanCopyright League, The,
organization of, 44; proceedings

of, 47
American literature in relation to

International Copyright, 97^.
Anne, Statute of, analysis of the,

322/:, 412/:
Appleton, D., & Co., 42
Appleton, W. H., 43, 47, 73
Architectural designs, Copyright

in, 242
Argentine Republic, Copyright

Laws of, 454
Arnell, S. M., 42
Arnold, Matthew, on Copyright,

324. 325
Arnoux, Ritch & Woodford, 51
Art Copyright, modified by the

Covert Amendment, 21
Art designs, Definition of, 11
Art productions, Copyright in,

145, 169, 171, 234, 236

Arthur, President, recommends
an International Copyright, 46

Artists of Europe, Relations of,
with the United States, 171

Ascent of Alan, The, case con-
cerning the Copyright of, 181

Austria, Present Copyright stat-
ute of, 364, 454

Authors, British Society of, 470

Authors' Copyright League, 21

Authors of Europe, Copyright in-
terests of, 172 ; criticism of,
concerning the Act of 1891, vi.

Authors, Injury to, under the
American Copyright Statute,

341/*.
Authors, Natural rights of, 83
Authors, Petition of, for Inter-
national Copyright, 107
Authors' readings in behalf of the
Copyright League, 50

Baird, Henry Carey, 388^". ,• 451
Baldwin, J. D., 43, 385
Bankhead Bill, the, x.
Banning, Henry B., 44
Beckett vs. Donaldson, 88
Beckford vs. Hood, 415
Belgium, Copyright Law of, 365,

455
Berne Convention, The report of,
288^,475 ; contracting States
under, 289, 316 ; authors'
rights under, 289 ; definition
of literary and art works under,
289 ; translations under, peri-
odical material under, dra-
matic compositions under, 290 ;
anonymous and pseudonymous
works under, 291

477

478

INDEX.

Bernheim, A. C, History of the
Lata of Aliens, by, 347

Black, A. & C, 172, 177, 178

Black vs. Allen, 178

Black vs. Enrich, 1 80

Black vs. Funk, 179

Black etal. vs. Stoddart, 177 ff.

Bolivia, Copyright Law of, 455

Bologna, early booksellers of, 358

Book, Definition of, under United
States Statute, 12, 184, 190

Books, Prices of, ior, 167^".

Books, Registration of, 199

Boston Copyright Association,
The, 449

Bowker, R. R., 51 ; summary of
Copyright legislation, 28 ff. J
History of Copyright in the
United Slates, by, 335, 336 ;
on the nature and origin of
Copyright, 317 ff. ; on statu-
tory Copyright in England,
412/:

Brazil, Copyright Law of, 455

Breckinridge, W. C. P., 53

Bristed, C. A., 386

Britannica cases, The, 177 ff.

British authors protest against the
Canadian Act, 469

British Commission of 1878, 214

British Copyright Act of 1886,
302/".

British Copyright Law, The pro-
visions of the, vii.

British Order in Council, 31 1 ff.

British Society of Authors, Copy-
right Bill framed by the, 275^".

British Weekly, The, 181

Bryant, W. C, 41, 42, 43, 384

Bureau of Copyrights, The, pro-
vided for in the Treloar Bill, 24

Butler, Judge, 178

Butterworth, Representative, 55

Caine, Hall, 470 ff. j analysis by,
of the provisions of the Cana-
dian Act of 1895, 472 ff.

Caine, Hall, and Daldy, F. R.,
Compromise Act for Canada,
proposed by, 470 ff.

Canada, the Copyright status of,

467 ff.

Canadian Act of 1889, 455, 468^".

Canadian Act of 1895, Qjoff.

Canadian Copyright, 262 ff.

Carey, Henry C, Definition of
literary property by, 354 ; Let-
ters on Copyright, 354, 383

Carte vs. Duff, 184/".

Carte vs. Evans, 185

Celtes, Conrad, 363

Chace, Jonathan, 46, 52, 53, 55

Chace Copyright Bill, the, 46 ff.

Charles IX. of France, 372

Cheap books and good books,
418/-.

Chicago Copyright League, 120

Chili, Copyright Law of, 456

China, Copyright in, 367, 456

Chopelin, report on literary prop-
erty by, 352

Clarendon Treaty, The, 43

Clay, Henry, Report of, in favour
of International Copyright,
33 ff-, 4° ; Copyright in its
relations to protection, 382

Cleveland, Grover, 106 ; recom-
mends an International Copy-
right, 46

Colleges, Petitions of, 112 ff.

Collins, Patrick A., 44

Colombia, Copyright Law of, 450

Colonial Copyright, 2<$§ff., 468

Colt, Judge, 176, 184

Common law right in the United
States, 93

Continental authors, Criticisms
of, concerning the Act of 1891,
vi.

Convention of Berne, States
which have become parties to
the, 316

Cooley, Justice, on the law of
blasphemy, 373

Copinger, on remedies for in-
fringement, 321 ; Definition of
Copyright by, 352

INDEX.

479

United States, iff.
Copyright, The nature and origin

of, 31 7 ff-

41
Copyright Act of 1891, Analysis

of the provisions of, 138 ff.
Copyright Act in Great Britain,

of 1880, 302
Copyright Act of the United

States, Modifications proposed

in the, vii., viii.
Copyright Acts, Earliest, in the

United States, 28
Copyright Acts of Great Britain,

309/"- , , ,

Summary of, 454^".
Copyright Leagues oppose the

Treloar Bill, 24
Copyright and " Monopolies,"

153

" Protection " 449 ff.
Copyright in the United States,

Persons entitled to, 2
Copyright in the United States,

Conditions of, 2>ff-
Copyright in works of art, xi.
Copyright registry in the United

States, vi.
Copyright Statutes of the United

States, 29^".
Copyright treaties between the

States of Europe, 377 ff.
Copyrights, Assignment of, 3.
Copyrights, directions for secur-
ing, under the U. S. Statutes,

J3#-
Copyrighted articles, Regulation

for the deposit of, 7, 8
Costa Rica, Copyright in, 456
Covert Amendment, The, v., 21
Cox, S. S., 43
Crampton, John F., 3S3
Crown Copyright, 194
Cummings Amendment, The, 22
Cummings, Amos, 22
Curtis, G. T., on Copyright, 123
Curtis, George William, 42 ; on

cheap books, 418

Daldy, F. R., 470

Dallas, Judge, 181

Daniels, Senator, 61, 62

Darras, Alcide, 334

Denmark, Copyright Law of,

304, 456
De Yinne, T. L., 53
Disseizin of chattels, 330
Documents, Private Copyright

in, 190
Dodd, Mead and Co., 186
Donaldson vs. Beckett, 31, 413

480

INDEX.

Dorsheimer, William, 45
Dramas, Copyright in, 195, 196
Dramatic compositions, Copy-
right in, 230
Dramatic performances, Copy-
right in, 195
Dramatic productions under the
Cummings Amendment, 22_^T.
Dramatization of novels, 196
Drone, E. S., 94, 334 ; definition
of literary property by, 351,
353 ; on Wheaton vs. Peters,
372 ; on the law of blasphemy,

374
Drummond vs. Altemus and Co.,
l8iff.

Ecuador, Copyright Law of, 457
Edmunds, Senator, 62
Educators, Petitions from, 11^ ff.
Eggleston, Edward, 44, 47, 48,

49. 52

Egypt, Copyright in, 457

Enrich Bros., 180

Elder, S. J., 49

Electric Club, of New York,
Resolution of, 120

Eliot, C. W., 48

England, Copyright Law of, see
Great Britain,

English, William H., 45

English authors, Relations of,
with the United States, 153 ff.

Engravings, Copyright in, 198

Estes, Dana, 48, 49, 6o, 97

European authors, Copyright in-
terests of, 172

Evarts, Wm. M., 44, 152

Everett, Edward, 42, 383

Farrer, Sir Thomas, 67, 266

Febiger, C, 52

Fiction, Status of, in the United
States, 151 ff. ; competition
of the cheaper magazines with,

165
Fine Arts, Copyright in the, 234,

235

Finland, Copyright law of, 457

Fishel, Adler, and Schwartz vs.
Lueckel and Co., 175

Fitch, Ashbel P., 56

Foreign literature and American
morals, 42S ff.

Foreign Reprints Act, 468

Foreign States in Copyright rela-
tions with the United States,
19, 20

Forfeiture of copies, 251

France, Copyright Law of, 457 ;
legislation in, 336 ; criticisms
of the authors of, in regard
to the Act of 1891, vi. ; pen-
alties in, for infringement of
Copyright, 361

Francis, C. S., 42

Francis II. of France, 364

French authors, Protests of,
against the Canadian Act of

1891, 473
French books, The prices of, 435

French Revolution, The, and in-
tellectual property, 337
Frye, Senator, 59, 61, 62
Frye Amendment, The, 59, 60
Funk, Isaac K., 179

Gaius, on intellectual property,

357
German books, The prices of,

43 ff-

German States, Privileges issued
in the, 363 ff

Germany, First Copyright enact-
ment in, 363 ; Copyright Law
of, 364, 458 ; movement in, to
set aside the convention with
the United States, vi.

Gibbons, Cardinal, on Copyright,
121

Gilbert and Sullivan, 184

Gilder, R. W., 44

Gladstone, W. E., on Inter-
national Copyright, 124

Granville, Lord, 44

INDEX.

481

Gray, Senator, 62, 155

Great Britain, Abstract of the

367, 459
Greece, Copyright Law of, 364,

459
Green, G. W., 47
Guatemala, Copyright Law of,

459 , , .

Gutenberg, The work of, in rela-
tion to Copyright, 329

Haggard, Rider, 182

Haggard vs. The Waverly Pub-
lishing Co., 182

Harper Bros., 44, 386 ; support
International Copyright, 391

Harper vs. Ranous, 183 _$\

Harrison, Benjamin, 106

Harrison, Frederic, on the Choice
of Books, 421

Hawaii, Copyright Law of, 459

Hawley, Joseph R., 45

Hawley Bill, The, 65

Hayti, Copyright Law of, 559

Hemy II. of France, 362

Henry III. of France, 362

Hicks Bill, The, v., 20

Hiscox, Senator, 62, 155

Holland, Copyright Law of, 364,
460

Holt, Henry, 96, 99

Honduras, Copyright in, 460

Hood, Thomas, on cheap bread
and cheap books, 387

Houghton, H. O., 48, 5*

House of Lords, Opinion of, on
the Statute of Anne, 89

Hroswista, Helena, 363

Hubbard, Gardiner, 51

Hungary, Copyright Law of, 460

Huxley, Thomas, 70

Immoral publications under the
British Statute, 183

Importation of pirated works,
212

International Copyright agree-
ments, 81

International Copyright Acts of
Great Britain, 308, 309

International Copyright under
the British Statute, coS ff.

International Copyright, con-
sidered by the British Com-
mission of 1878, 2bqff.

International Copyright, Cases
and decisions under, in the
United States, 175 ff.

International Copyright, Efforts
in the United States in behalf
of, &iff.

International Copyright and the
prices of books, 441^".

International Copyright, Provi-
sions for, in the United States,
Act of 1891, 13

International Copyright in the
United States, Record of the
contest for, 40 ff.

International Copyright, Recom-
mendations in regard to, 227

International Copyright relations
of the United States, 19

International Copyright Union,

287 ff.

International Union for the pro-
tection of literary and art
works, 292

International literary under-
takings, 444 ff.

Italy, Copyright Law of, 365,
460

Irving's Works, Copyright in,

374
Ivison, Henry, 42, 384

Japan, Copyright Law of, 364,

460
Jay, John, 41
Jheri'ng, definition of legal rights,

327 ; the struggle for law by,

333

482

INDEX.

Johnson, R. U., 47, 48, 50, 63
Johnston, Alexander, 178
Justinian, on intellectual prop-
erty, 357
Juvenal, on the sale of dramas,
356

Kennedy, James, 52
Keratry, Comte de, 54
Klostermann, on literary prop-
erty, 355
Kohler, Ignatius, 51

Landor, Walter Savage, on Copy-
right, 333

Lathrop, G. P., 44

Lawrence vs. Dana, 373

Lea, Henry C, 53

Lectures, Copyright in, 181, 197,
232, 233

Leo X., Relations of, to literary
property, 360

Leopold II., 364

Letters, Copyright in, 190

Lewes, G. H., Life of Goethe,
by, 348

Librarian of Congress in charge
of Copyrights under the Stat-
utes, i., ix.ff., 31 ff.

Librarians, Petitions from, n$ff.

" Libraries" of fiction, 154^".

Libraries, Right of, to copies of
copyrighted articles, under the
British statute, 202, 252

Lieber, Francis, Definition of
property, by, 353, 382

Literature, Works of, under the
Act of 1891, 138

Literary property, Definitions of,

351/:
Literary Property, Historical

Sketch of, 351 ff
Literary property. Objections to

its perpetuity, 399 ff.
Little, Brown, & Co., 177
Littleton vs. Ditson, 184

Lodge, Henry C, 57, 63

Longmans, Green & Co. vs.
The Waverly Publishing Co.,
182

Louis XII, Relations of, to liter-
ary property, 360

Lounsbury, Professor, on the
prices of books, 433

LoweH, J. R., 44, 45. 324, 393

Luther's translation of the Bible,
363

Luxembourg, Copyright Law of,

455
Lyon-Caen and Delalain, La
Propriety Litl/raire et Artis-
tique, 336

Macaulay, T. B., 415
Mackay-Smith, A., 50
MacLaren, Ian, 186
MacLeod, on the principles of

on International Copyright,

124 ff.
Magazines, Competition of, with

fiction in volume form, 165
Maine, Sir Henry, 97
Mansfield, Lord, on Copyright,

90, 413/"-
Manufacture, American, burden

of proof concerning, 186
Manufacturing conditions in the

American Act, 160
Manufacturing conditions and

books, 355
Mason Bros., 42
Matthews, Brander, on cheap

books and good books, 418 ff.;

on the evolution of Copyright,

324 if-
Matthews, Cornelius, 41
Maximilian, Emperor, 363
McClurg, A. C, 47, 49

INDEX.

433

Mexico, Copyright Law of, 461

Mikado, The, Copyright in the
opera of, 184

Millar vs. Taylor, 88, 413 ff.

Milton, John, on good books,
440

Mitchell, Donald G., 173

Mitchell, S. W., on Copyright,
122

Monaco, Copyright Law of, 461

Monkswell Bill, the, 173, 275 jf./
analysis of, by Sir Frederick
Pollock, 282/:

Montenegro, Copyright Law of,
461

Montevideo, Copyright Conven-
tion of, 314-315

Morrill Bill, the, x.

Morrill, Lot M., 44, 3S7

Morris, Edward P., 42

Morton, J. P., 386, 387

Moulins, Ordinances de, 334,
362

Music composers, Opinions of,
in

Musical compositions, under the
Act of 1891, 146 ; Copyright
in, 184, 197, 230 ; and the
manufacturing requirement,
l84iT.

Nada the Lily, suit concerning,
182

National Assembly of France,
The, 362

Naujok, G., Die Heilige Cecilia,
painted by, l7Sff-

Nelson, Judge, 176

New England International
Copyright Association, Resolu-
tion of, 120 ff.

Newspaper Publishers' Associa-
tion, 21

Newspaper publishers, Resolu-
tion of, 118

Newspapers, Copyright in, 233,

234
Newspapers supporting the Copy-
right Bill, 57

Newspapers of the United States
on International Copyright,

125/".
Norway, Copyright Law of, 461
Novello vs. Ditson, 184
Novels, dramatization of, 231

Osgood vs. Aloe, 186

Paintings, Copyright in, 197,

236 ff.
Palmerston, Lord, 382 ; suggests

a Copyright convention, 41
Palsgrave, John, 332
Paraguay, Copyright in, 461
Paris, Early booksellers of , 358
Parkes, Baron, on Copyright,

320
Parton, James, 42
Pasco, Senator, 63
Patent Office of the United

States, 12
Patents, House Committee on,

25 • •

Patents, U. S. Commissioner of,

Payson, Lewis E., 56

Peale, R. S., & Co., 180

Pearsall-Smith, R., 66

Pearsall-Smith scheme of Copy-
right, The, 65

Penalties for infringement of
Copyright, 201, 202, 204 ff.,

254
Peter of Ravenna, 359 ; secures

240
Photographische Gesellschaft of

Berlin, The, 175 ff.
Piatt, O. II., 55. 6i, 62, 148/".
Platt-Simonds Copyright Act,

text of, 131 ff.
Pollock, Sir Frederick, 282
Portugal, Copyright Law of, 461

484

INDEX.

Pott, James, & Son, 181

President, The discretionary
power of the, under the Act of
1891, 13, 182 ff.

Prices of books as affected by
International Copyright, 154,
167 ff.

Prime, S. Irenaeus, 42

Prints or labels for manufacturing
purposes distinguished from
works of art, 11 ff.

Printing in relation to Copy-
right, 329

Privileges, the earliest form of
Copyright, 331

Proculus, on intellectual prop-
erty, 357

Property, Earlier ideas concern-
ing, 395 ff-

Protectionists and International
Copyright, 402.

Proudhon's definition of prop-
erty, 354

Prussia, Convention of, with
Wurtemberg, 41

Publication, What constitutes,
184

Publishers, American, first or-
ganization of, in behalf of
International Copyright, 42

Publishers and the Copyright
Bill, 154

Publishers' Copyright League,
21, nbff.

Putnam, G. H., 47, 48, 51, 52,
60 ; historical sketch of literary
property by, 351 ; on Copy-
right monopolies and protec-
tion, 449^"./ on International
Copyright and the prices of
books, 441^.

Putnam, George P., 41, 42, 43,
45, 382, 387

Putnam, Judge, 175

Putnam vs. Meyer, 373

Putnam vs. Pollard, 31, 372,

374

Piitter, Beitrdge, 359

Pynson, Richard, secures the ear-
liest English privilege, 332

Reciprocity, Conditions of, under

the Act of 1891, 146
Reed, Thomas B., 63
Registration of books and other

articles, 200
Registration of Copyrights, 242

Results of the Copyright Law,

162/:
Royalty system of Copyright, 217

ff; 403 if.
Robinson Copyright Bill, The,

44
Rome, Copyright in, 328
Rome, Literary property in, 356
Roman jurists on immaterial

property, 357
Routledge vs. Low, 468
Russia, Copyright Law of, 364,

462

St. Leonards, Lord, on Copy-
right, 317

Salvador, Copyright in, 463

Scribner, Charles, 42

Scribner, Charles (the second),
47, 63

Scribners' Sons, Charles, 178 ff.

Scrutton, T. E., 332

Sculpture, Copyright in, 197,
235-236

Serials and periodical articles,
Copyright in, 223

Servia, Copyright Law of, 463

Sherman, John, 58, 61, 62

Shipman, Judge, 179

Simonds, W. E., 55 ; report of,
on International Copyright, 77

Simultaneous publication, con-
dition of, under the British
Statute, 193

Smith, Goldwin, 467

Solberg, Thorwald, 46

Sosii, the, Roman publishers, 355

South African Republic, Copy-
right Law of, 463

INDEX.

485

South American States, Copy-
right Convention of, 314, 315
Spain, Copyright Law of, 364,

463
Spencer, Herbert, 67, 405, 469
Spira, John of, secures the first

European Copyright, 331
Spofford, A. R., 155, 169
Stage-right under the Cummings

Amendment, 22
Star Chamber, The, 335
Stationers' Company, The, 334
Statute, Copyright, of 1790, 28
Statute of Anne, 87
Statutes of the United States in

re Copyright, 1 ff.
Statutory Copyright in England

and development of, 412 ff.
Stedman, E. C, 42, 384
Stephen, Sir James, digest of

the Copyright Law of Great

Britain, by, 189
Stoddart, J. M., & Co., 177
Subjects of Copyright, 372
Sumner, Charles, 42
Supreme Court of the United

States on Copyright, 93
Sweden, Copyright Law of, 364,

464
Swiss Confederation, placed in

charge of the International

Union, 292
Switzerland, Copyright Law of,

464
Sylvester, Professor, on the buy-
ing of books, 432

Talfourd, Sergeant, 41
Terence, secures sale for his

dramas, 356
Term of Copyright considered,

338#
Term of Copyright in Great

Britain, 191
Term of Copyright recommended

by the British Commission,

219
Thomson's Seasons, 413

Thornton, Sir Edward, 43, 394
Title, Copyright in a, 183, 185^.
Townsend, Judge, ll^ff.
Tracy, George, 185
Trade Marks, Regulations for the

protection of, 12
Trade-mark as a protection for

uncopyrighted material, 186
Translations, Copyright in, 211

ff>

Treloar Bill, the, 24 ff.

Trilby, Copyright in the title of,

i83jf.
Tryphon, publisher for Martial,

355
Tucker, Randolph, 46
Tunis, Copyright Law of, 464
Turkey, Copyright in, 464
Twain, Mark, on cheap books,

428
Typographical unions, influence

of, in shaping the Copyright

Bill, 51, 52, 53, n8
Typothetse, National Association

of, 52, 53. 119

United States, Earliest Copyright
Acts of the, 369

United States, Copyright Law
of, 1, 464

United States, History of Copy-
right in the, 335

United States, the Copyright
Law of, Modifications recom-
mended in, viii.

University Copyright, 194, 224,
225

University of Paris, Statutes of
the, 358

Uruguay, Copyright in, 464

Van Dyke, Henry, 50
Venezuela, Copyright Law of,

465
Venice, Relations of, to literary
property, 360

486

INDEX.

Venice, The Republic of, grants

the first Copyiight, 331
Vote on the Copyright Bill in the

House, December, 1S90, 156 ;

in the Senate, March 3, 1891,

160

Wachter, Das J'crlcgsrechts, of,

353
Walker, Francis A., 178
Watson, John, 186

Webb, Judge, 176

Webster, Noah, initiates the
State Copyright laws, 36c)

Werckmeister vs. Pierce & Eush-
nell, xi., 175

Wheaton vs. Peters, 30, 93, 371,
372

White, Richard Grant, Interna-
tional Copyright and Free
Trade, 401

Wilson, W. L,,56

Worde, Wynkyn de, 332

Books and Their Makers
During the Middle Ages

A Study of the Conditions of the Production and Distribu-
tion of Literature from the Fall of the Roman Empire to
the Close of the Seventeenth Century.

By GEO. HAVEN PUTNAM, A.M.

Author of " Authors and Their Public in Ancient Times," " The
Question of Copyright," etc., etc.

In two volumes, 8°, cloth extra (sold separately), each - $2.50

Volume I. 476-1500. (Ready April, 1896.)
PART I. — BOOKS IN MANUSCRIPT.
I.— The Making of Books in the Monasteries.
Introductory. — Cassiodorus and S. Benedict. — The Earlier Monkish Scribes. —
The Ecclesiastical Schools and the Clerics as Scribes. — Terms Used for Scribe
Work. — S. Columba, the Apostle to Caledonia. — Nuns as Scribes. — Monkish
Chroniclers. — The Work of the Scriptorium. — The Influence of the Scriptorium. —
The Literary Monks of England. — The Earlier Monastery Schools. — The Bene-
dictines of the Continent.— The Libraries of the Monasteries and their Arrange-
ments for the Exchange of Books.

II. — Some Libraries of the Manuscript Period.
III. — The Making of Books in the Early Universities.
IV. — The Book-Trade in the Manuscript Period.
Italy. — Books in Spain. — The Manuscript Trade in France. — Manuscript
Dealers in Germany.

PART II. — THE EARLIER PRINTED BOOKS.
I. — The Renaissance as the Forerunner of the Printing-Press.
II. — The Invention of Printing and the Work of the First Printers
of Holland and Germany.
III.— The Printer-Publishers of Italy.

Volume II. 1500-1709. (Ready September, 1896.)
IV.— The Printer-Publishers of France.
V.— The Later Estiennes and Casaubon.

VI. — Caxton arid the Introduction of Printing into England.
VII. — The Kobergers of Nuremberg.
VIII.— Froben of Basel.

IX. — Erasmus and his Books.

X. — Luther as an Author.
XI. — Plantin of Antwerp.
XII.— The Elzevirs of Leyden and Amsterdam.
XIII. — Italy: Privileges and Censorship.
XIV.— Germany : Privileges and Book-Trade Regulations.
XV. — France : Privileges, Censorship, and Legislation.
XVI. — England: Privileges, Censorship, and Legislation.
XVII. — Conclusion : The Development of the Conception of Literary
Property.

G. P. PUTNAM'S SONS
New York : 29 West 23d St. London : 24 Bedford St., Strand

Authors and Their Public
In Ancient Times

A Sketch of Literary Conditions and of the Relations with
the Public of Literary Producers, from the Earliest Times
to the Fall of the Roman Empire.

By GEO. HAVEN PUTNAM, A.M.

Author of " The Question of Copyright," " Books and their Makers
During the Middle Ages," etc.

Second Edition, Revised, 12°, gilt top .... $1.50

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A Literary History of the
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From the Earliest Times to the Present Day.
By J. J. JUSSERAND

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After so many excellent works, of which English literature is the subject, have
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success, except by a man with a thorough and correct knowledge of literature and
the history of the English people, and of the people themselves, and one who is
worthy of serious consideration by all literary historians. — Le Revue de Paris,
July 1, 1894, on the French Edition.

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AMERICAN LITERATURE

1607-1885

BY
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Complete in two volumes, octavo, gilt tops .... $6.00

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