COPYEIGHT NATIONAL AND INTERNATIONAL WITH SOME EEMARKS ON THE POSITION OF AUTHORS AND PUBLISHERS BY A PUBLISHER ALSO, AN APPENDIX INCLUDING THE TEXT OF « THE INTERNATIONAL AND COLONIAL COPYRIGHT ACT, 1886; ” AND OF «A BILL TO CONSOLIDATE AND AMEND THE LAW RELATING TO COPYRIGHT” (NOW BEFORE PARLIAMENT, 1887); ALSO, THE ARTICLES OF “THE INTERNATIONAL COPYRIGHT UNION” &c., &c. LONDON ; SAMPSON LOW, MAESTON, SEAELE, & EIVINGTON CROWN BUILDINGS, 188 FLEET STREET 1887 lAll rights reserved.] PRICE HALF-A-CROWN. I Return this book on or before the Latest Date stamped below. University of Illinois Library 1355 l^fk 13 J’Jh ~3 IS5 JUL 1 3 !S MfiR 30i957 nai „7 ijsg nUG >'■' -a ^ 0 , m Vli 4AN SW ' "-C f my'/7 1980 MBY 17 AUG 5 980 ■i I COPYEIGHT NATIONAL AND INTBENATIONAL WITH SOME KEMAEKS ON THE POSITION OF AUTHORS AND PUBLISHERS A PUBLISHEK ALSO, AN APPENDIX INCLUDING THE TEXT OF « THE INTERNATIONAL AND COLONIAL COPYRIGHT ACT, 1880 ; ” AND OF “A BILL TO CONSOLIDATE AND AMEND THE LAW RELATING TO COPYRIGHT” (NOW BEFORE PARLIAMENT, 1887); ALSO, THE ARTICLES OF “THE INTERNATIONAL COPYRIGHT UNION” &c., &c. LONDON: SAMPSON LOW, MAKSTON, SEAKLE, & KIVINGTON CROWN BUILDINGS, 188 FLEET STREET 1887 [All rights reserved.] I LONDON : PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. ^5 6 POSTSCRIPT. Since this icork was printed I learn on good authority that Her Majesty s Government are preparing a Bill which it is hoped they will he able to present to Parlia^ ment before the close of the present Session. The Bill {Appendix IIL), was laid before Parliament in a par- liamentary paper, and may more properly be regarded as a scheme to aid the Government in drafting their Bill. It should be added that this scheme of a bill is the exclusive work of The Copyright Associationf and not of the combined efforts of “ The Society of Authors^' and that association., as stated in the prefatory note. 188 , Fleet Street, London. May 7 , 1887 . E. M. Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/copyrightnationaOOmars NOTE. This pamphlet, written by a publisher, has no pretension whatever to be regarded as representing the views of all publishers, or of any other publisher than the writer. Nor has the writer the vanity to consider himself “an author” because he has written and compiled these few pages. The word author, it is true, has, popularly, a comprehensive significance, but he has too much regard for real authorship to obtrude himself upon authors and the public in any other capacity than that of a publisher taking note of matters connected with copyright, authors, and publishers, as they present themselves from his point of view. A careful perusal of the most valuable and lucid Report of the Com- missioners induced the writer, in 1879, to give a sketch, brief or otherwise, of all the subjects treated of in the Report. Nothing can be more admirable than the way in which this Report steers its even course between Scylla and Charybdis — ^having to regard on the one hand the true interests of authors and copyright owners, and on the other the shoals and quicksands which surround the oftentimes imaginary interests of the public. A large proportion of that sketch has been retained in the present pamphlet, but altered, modified, or excised, as lapse of time has made necessary. For his own convenience, and for convenience of reference, the new matter which has now been added has been set in Italic type. The chief interest in the Commissioners’ Report, on which this sketch was originally founded, now lies in the fact that it formed the basis of a Bill pre- sented by Lord John Manners in 1880, but which fell to the ground. That Bill again has been partly incorporated in a Bill now before Parliament, drawn up by the combined efforts of “ The Incorporated Society of Authors,” and the “ Copyright Association,” the latter being largely represented by publishers. The question of considerable interest to publishers, as to the right of the British Museum to claim non-copyright books, and the still more burning one recently agitated between Authors and Publishers, are considered, it is hoped, with impartiality, and several items of practical usefulness in the existing law of copyright have been added, chiefly from the admirable Digest prepared by Sir James Stephen for “ The Report of the Commissioners.” In the Appendix will be found the Text of the International and Colonial Act of 1886, “ The Articles of the International Copyright Union,” and the “Bill to consolidate and amend the Law relating to Copyright” now before Parliament. If there is any value whatever in the following remarks, it is derived from the fact that they are the outcome of the practical experience of a publisher, in the various departments of the copyright question with which his own interests are, as Sir Louis Mallet says, so “ inextricably intertwined remarks for the most part in accordance with the Commissioners’ Report, but sometimes opposed to them from a publisher’s standpoint. London, April, 1887. E. M. CONTENTS AND INDEX. PAGE AMERICA — International Copyright with 50 „ The Harper Draft ....... 52 „ Dorsheimer Bill ........ 53 „ Hawley Bill ........ 53 American Books and the British Museum . . . . .18 Authors and Publishers 41 Board of Trade 27, 32, 33 British Museum 17 „ deposit of non-copyright Books .... 18 „ Counsel’s opinion ...... 18 Cairns (Lord) . . .14 Camden (Lord) 2 Cheap Literature ........ 24, 34 Colonial and International Act, 1886 ...... 57 Colonies, Cheap Books for ........ 24 Colonies, Sale of Piratical Editions in . . . . . .27 Commissioners’ (Koyal) Keport . . .... 8 Copyright as Property — In France, Germany, Austria and Hungary, Holland, Denmark, Norway, Sweden, Spain, Eussia, Portugal, Greece, Italy, Belgium, Switzerland, Turkey, Brazil, Kepuhlic of Chili, Japan, Mexico, United States of Venezuela, United States of America . . 5-9 Copyright Act (First) 7 „ Talfourd’s Act, 1842 ....... 8 Duration of, in Foreign Countries ..... 5 „ as proposed by Commissioners 13 University ....... 13 Book defined ...... 11 (Crown) ....... . 13 International and Colonial Act, 1886 . 57 how to be obtained by a foreigner 12 in British Dominions ..... . 25 IN Canada ....... . 29 in the Colonies ...... . 24 in India ....... . 28 in Letters ....... . 20 in maps ....... . 23 VI CONTENTS. PAGE Copyright, penalties for infringing .... „ „ „ importing .... „ in private documents .... „ what is infringement of . „ who may obtain ..... Donaldson v. Becket ...... Dorsheimer Bill ....... Dramatic Pieces ....... Dramatisation of Novels ..... Farrer (Sir T. H.) Foreign Eeprints Act ...... France (Copyright in) . French and German Novels ..... Harper Draft (The) ...... Hawley Bill ....... Importing Copyright Books ..... „ Non-Copyright Books .... International and Colonial Act, 1886 „ Conventions ..... „ Series ...... „ Copyright with America Johnson (Dr. S.) ...... Library System ....... Licensing System ...... Mallet (Sir Louis) ...... Millar v, Taylor . . . . . . Milton’s Paradise Lost ...... Agreement with Symons .... Musical Compositions ...... Public Libraries ....... Publication, place of . Kegistration and Deposit of Copies . Eeprints, introduction of .... . Eoyalty System ...... Society of Authors ...... Stephen, Sir J., Digest ..... Tauchnitz Editions ...... Trade Mark — perpetual right in Title Translations ....... Trevelyan (Sir Charles) ..... Universities and Colleges, sole right of Printing Weale’s Series ....... Appendix : — Abridgment of Copyright Books Architecture ...... Colonies under Foreign Eeprints Act . 21 21 . 20 . 20 12 2 . 53 . 22 . 23 1, 4, 36 25, 26 . 35 . 35 . 52 . 53 . 21 . 18 42, 50, 55, 56 55-56 . 39 . 50 . 1, 3 . 34 . 26 1, 4, 36 1 2 . 78 . 22 . 17 . 13 . 15 . 31 . 36 . 8, 41 . 8,14 . 32 . 54 . 56 . 35 . 13 . 40 75 77 77 CONTENTS. Vll Appendix : — continued. Copyright, a Bill to consolidate and amend the Law re- lating TO ......... 68 Countries having International Conventions with Great Britain . 77 Immoral, Irreligious, and Libellous Works . . . .75 International and Colonial Act 57 „ Copyright Union (Articles of) . . . .62 Lectures .......... 75 Newspapers .......... 75 Paintings .......... 76 Photographs . . . . . . . . .76 Milton’s Agreement with Symons ...... 78 COPYRIGHT. “ This is the very coinage of your brain.” — Hamlet Dr. Samuel Johnson defines this word as “ property of an author in a literary work ; ” other lexicographers give it the same definition, with the words added, for a limited term of years; ” and Worcester says it is “a right given by law,” as though he questioned the wisdom of the law. Dr. Johnson, elsewhere descanting on the subject of literary property, qualifies the above definition. He says — “ There seems to be in authors a stronger right of property than that by occupancy : a metaphysical right, a right as it were of creation, which should from its nature be perpetual ; but the consent of nations is against it ; for were it to be perpetual, no book, however useful, could be universally diffused amongst man- kind, should the proprietor take it into his head to restrain its circulation. No book could have the advantage of being edited with notes, however necessary to its elucidation, should the pro- prietor perversely oppose it. For the general good of the world, therefore, whatever valuable book has once been created by an author, and issued out by him, should be understood as no longer in his power, but as belonging to the public ; at the same time the author is entitled to an adequate reward. This he should have by an exclusive right to his work for a considerable number of years.” — Boswell’s Life of Johnson. This view of copyright, by an author of no mean repute, coupled with a liberal concession to “ the general good of the world,” seems to be the one taken of copyright by all countries which have yet afforded it protection. It is a view, however, which has always found powerful opponents : on the one hand, by those who maintain that copyright should be perpetual ; and on the other hand, by those who from the days of Lord Camden, a hundred years ago, down to Sir T. H. Farrer, Sir Louis Mallet, and others of the present day, maintain that no property can exist in uttered thought. The first great copyright trial was that of Millar v. Taylor, B 2 COPYRIGHT. which involved the proprietorship of the assigns of the poet Thomson in his own poems.* The next case was that of Donaldson v. Bechet , and it was in this discussion that Lord Camden delivered his famous argument against copyright. “If there he anything in the world,” says Lord Camden, “ common to all mankind, science and learning are in their nature puhlici juris, and they ought to he as free and general as air and water Those great men, those favoured mortals, those sublime spirits who share that ray of divinity which we call genius, are entrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which Heaven meant for universal benefit; they must not be niggard to the world, or hoard up for themselves the common stock. . . . Know- ledge to he enjoyed must he communicated. Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions : fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world ; it would be unworthy such men to traffic with a dirty h'iohseller ” I pause at this climax, as it comes specially home to a pub- lisher, to say that, brilliant as is Lord Camden’s invective, his facts are not unimpeachable. In the days when copyright had no other protection than that of Common Law, Milton did “ con- descend to traffic ” with a bookseller, whether “ dirty ” or not. He did not sell the copyright of ‘ Paradise Lost ’ for £5 as i:? commonly supposed. On the contrary, he retained his copy- right in his own hands, selling to Simmons (or Symons, a printer of Aldersgate Street,) the right to print 1300 copies ; £5 to be paid down immediately, and another £5 when thaf. number was sold. These 1300 of the first 4to edition were issued in nine different impressions (varying in small parti- culars) between 1667 and 1669. He had a like sum for the second edition, which was in 8vo, and which was not called for till 1674 (seven years after the first was printed), and he did * The copyright by the statute had expired. The issue raised was, whether ^ a right of property therein was still given by the Common Law. Lord Mans- field decided in favour of the plaintiff, thus confirming this right. t In this case Lord Mansfield’s decision was reversed, and it was aflirmed that Common Ijaw Copyright was taken away by the statute of Anne. COPYRIGHT. 3 I not live to receive his third “ miserable pittance.” The third edition was published in 1678.* Milton died on the 8th of November, 1679, and his widow agreed with Simmons to receive £8 for her right, for which she gave him a general 'release on the 29th of April, 1681. The “miserable pit- ! tance ” which Milton received for this great work has generally 'been regarded as a reproach to his publisher, and has been repeatedly quoted as such in the recent somewhat heated discussions raised by “ The Society of Authors ” on the subject of “ Authors and Publishers ; ” it should rather be regarded as a reproach to the undiscriminating public of that age which could only purchase three small editions in fourteen years. As a proof that Simmons did not attach any great value to his acquisition, he seems to have eventually sold his right for £25 to Brabazon Aylmer, from whom Jacob Tonson purchased a half-interest, and issued the folio edition of 1688 with a portrait. At all events, it would seem from the facts stated that Milton was, as Mr. Curtis says (in his work on Copyright), “ careful to assert his full right of property, as he and others understood it at that time, and to make it available to his family. ... As such rights were estimated then, and con- sidering that the poem gained slowly upon the attention of his own age, the price he received was not grossly inadequate.” Dr. Johnson says that “the nation was satisfied with two editions of Shakespeare’s Plays from 1623 to 1664 which probably could not amount to 1000 copies.” “ II divino Tiziano ” did not paint his altar-pieces, nor the divine Kaphael his Madonnas, for the simple love of fame — they got as much money as they could ; nor did the heavenly-gifted Mozart ever give his sonatas to his music publishers without “ consideration.” Yet he died in poverty. Among “ scribblers for bread ” have been numbered the greatest names in litera- ture. These Lord Camden and his followers would scorn ; but when success has crowned the efforts of a Tennyson or a Turner, then fame is to be his only reward ! Poor poet ! poor painter ! ' * As a literary curiosity I have given (Appendix V.) a copy of the original ; agreement between John Milton, Gent., and Samuel Symons, Printer, which , substantially confirms tiie above statement. I B 2 4 COPYRIGHT. Addison’s opinion on infringers of the rights of authors | will be found in these words : — ' “ A set of wretches we authors call pirates who print any hook, poem, or sermon as soon as it appears in the world in a smaller volume, and sell it, as all other thieves do stolen goods, at a j cheaper rate.” — Tatler. | Copyright under the common law seems in those days to j have been regarded as perpetual, for Milton’s great Epic was protected by injunction by Lord Hardwicke in 1739, in favour of the right which Tonson had acquired in 1683, and seventy- , two years after the first assignment by Milton.^ i In all I have to say on the subject I shall assume that copy- 1 right is PROPERTY, if not in perpetuity, at least in the limited sense which Johnson has conceded, and which the Statute Law | has adopted ; for I cannot conceive it to be necessary to dive | into the question of the origin of property, as Sir Louis Mallet i does, in order to prove that copyright “ rests upon a radical ’ economic fallacy, viz. a misconception of the nature of the laW| of value ; ” nor will I pretend to contest the assertion of Sir T. H. Farrer, that “ words, thoughts and actions, when uttered^ or done, pass as a general rule into the common domain, and ifi is thus that human life is carried on.” It has generally been! conceded that however much ideas may be common property] the man who by his genius (a “ ray of divinity,” as Loro' Camden calls it,) and by the sweat of his brains, reduces ideas; to words and words to printed books, is as much entitled to call the result of his work his property as the man who by brow- sweat, or by no sweating at all, becomes the unquestioned' owner of lands or merchandise. If governments and legisla-’ tures are at this stage of the world’s existence prepared to reconsider the question of property in its foundation, then the ) very able essay which Sir Louis Mallet has appended to the Commissioners’ Eeport must be regarded as a valuable con- tribution — and copyright, the last form of property which * The booksellers of the middle of the last century gave large sums for copyright, because it was then considered a perpetuity^ and it was in this sense the jury found in the case of Millar v. Taylor. COPYRIGHT AS PROPERTY. 5 governments have recognised, should properly be the first to be attacked and removed ; but apparently Sir T. H. Farrer and Sir Louis Mallet are willing for the present to waive their very abstract, not to say abstruse, views in favour of the majority who do recognise copyright as property ; they still however propound certain modifications which I propose to consider firom a publisher’s point of view further on. COPYKIGHT AS PEOPERTY. There seems to be this difference between copyright and all other kinds of property, — that in all countries where copyright has been recognised as property, it has been specially protected by statute and limited to a certain term of years. In Great Britain, a term of forty-two years from publication, or, the life of the author and seven years from his death — whichever term may be the longer. In France, copyright is guaranteed to an author for his life, and (subject to a variety of special regula- tions) for fifty years after his decease. In Germany, copyright continues for the author’s life, and for thirty years after his death. In Austria and Bungary, the term is the same. In Holland, for the life of the author and twenty years after. In Norway, for the life of the author and fifty years after his death. In Denmark, for the author’s life and fifty years. In Sweden, for life and fifty years. In Spain, for life of author or translator or ‘‘ other persons to whom it may pass by donation inter vivos ” — then for eighty years. In Russia, for life and fifty years, and for ten years more if an edition is published within five years of the end of the first term. In Greece, copy- right is for fifteen years from publication. In Italy, for life and forty years, with a second term of forty years, during which anyone can publish the work upon paying a royalty to the author or his assigns. In Portugal, for life and thirty years after author’s death. In Switzerland, life of the author, or to his heirs for thirty years from date of publication. Heirs have the right for ten years to publish a posthumous work of the author, which, if they avail themselves of, they are protected for thirty years from death of author. In Turkey, to the 6 COPYRIGHT. author, his heirs or assigns, for forty years. In Brazil, author’s life and ten years. Bepuhlie of Chili, author’s life and five years after his death. Japan, author and his heirs for thirty years, or for works of great utility, forty-five years. Mexico, literary copyright is perpetual, registration and deposit obligatory. United States of Venezuela, author’s life and fourteen years. In Belgium, for life and twenty years. In the United States, for twenty-eight years from the time of recording the title, and fourteen years more if the author, or certain representatives of the author, be living, and the title be recorded anew within six months before the expiration of the twenty-eight years. It will thus be seen that the wisdom of the most enlightened nations in the world is unanimous in its recognition of the rights of authors in their works ; differing only in the term of years for which those rights should be protected. In contra- distinction to the views of transcendentalists, who follow Lord Camden, this must be regarded as the true view of the value and legitimacy of copyright property. Assuming then that copyright is property, limited as above described, it seems only reasonable that it should enjoy the same privileges, and be subject to the same conditions every- where, as all other kinds of property. England maintains this ground by granting copyright to every author of every nation- ality, but somewhat mars the gracefulness of the gift by insist- ing that in order to enjoy this right the author’s work must be first published in England. A foreigner publishing in France enjoys the same copyright as a Frenchman, whether he has previously published in his own or any other country or not ; nor does a French subject injure his copyright by publishing first in a foreign country. This being the case, France may certainly be regarded as being ahead of this country in its desire not merely to protect authors, but, as Lord Cairns puts it, “ to increase the common stock of the literature of the country.” It seems, however, that in countries having international conventions with France the rights of foreigners are made to conform to those conventions, and cannot be maintained by the decret’loi unless the work has been first published in France. Thus, although France was amongst the first to agree to and COrYRItJHT AS PROPERTY. 7 adopt international conventions for the protection of foreign authors, such conventions would have been wholly unnecessary had all other countries recognised and adopted the same wise and liberal policy as that which exists in the French decret-loi^ March, 28, 1852, with reference to the property of foreigners.* If such a view were universally recognised by civilised nations, the many complications arising out of the question of authors’ rights would be imensely simplified. France must be regarded as in the van of this liberal policy ; England next. I am not aware of any other countries giving these rights to foreigners, apart from international conventions, whilst America shuts her- self selfishly up in her own great country, and refuses to give any rights whatever to foreign authors, unless they go over and enrol themselves as citizens under the star-spangled banner. The first Copyright Act — that of Queen Anne, 1709 (8 Anne, c. 1 9) — was passed professedly for the encouragement of learning, and secured to authors the sole right of printing their works for fourteen years; with another term of fourteen years, if living, at the expiration of the first, making in all twenty- eight years at most. It seems, however, that in those good old times publishers were not so acute, or so grasping, or so anxious to cut each other’s throats as in the present day ; for it is said that long after the passing of this statute there was a custom carefully observed among publishers not to interfere * “ Les droits con feres par le decret-loi du 28 mars aux auteurs et artistes d’ceuvres parues originairement a I’etranger sont definis et regies par la legislation fran^aise ; ils ne sauraient I’etre par les legislations respectives de chaque Etat. Ces auteurs et artistes sont assimiles aux auteurs et artistes d’oeuvres parues originairement en France ; ils ne peuvent etre traites d’une maniere plus favorable. Cependant, lorsqu’une convention a ete conclue avec un Etat, ce traite modifie les effets du decret-loi du 28 mars, en tant que ses dispositions seraient en opposition avec le dit d^cret ; les prescriptions de la nouvelle convention deviennent la loi speciale des parties et les droits des auteurs et artistes de cet Etat sont regies en France par la convention intervenue. Le decret-loi du 28 mars ne donne pas le droit au^ auteurs et artistes d’oeuvres parues originairement a I’etranger de jouir des benefices resultant, en pays etrangers, des conventions Internationales; ils n’en peuvent profiter que lorsque leurs oeuvres ont paru originairement en France.” — M. Delalain, Nouvelle Lejislation des Droits de Proprietc Litterarie et Artistipue. 8 COPYKIGHT. with one another’s lapsed copyright, and thus practically a kind of perpetual copyright was recognised. Then came the Act (15 Geo. III. c. 56) which gave perpetual copyright to the Universities; then the Act (41 Geo. III. c. 107) which extended copyright to Ireland ; and the Consolidation Act (54 Geo. III.), which lengthened the term to twenty-eight years absolutely, and further for the life of the author if then living. Next came Serjeant Talfourd’s Act of 1842 (5 & 6 Yict. c. 45), which gave the author copyright for life and seven years after, or for forty-two years from date of first publication, which- ever period might be the longest. This Act was followed by sundry others for the protection of dramatic pieces, art works, &c., and international copyrights covered by special conven- tions ; but substantially, so far as literature in Great Britain is concerned, Talfourd’s Act forms the law which protects literary copyright at the present time. It has been deemed desirable to revise and consolidate the various Acts now existing, for which object a Koyal Commission was formed whose Report was issued in the year, 1878. This Beport formed the basis of^‘a Bill to consolidate and amend the Law relating to copyright f prepared and brought in by Lord John Manners and ordered to be printed July 29, 1879, but owing to pressure of other business it never came under discussion. Another Bill has now been prepared by the joint efforts of^* The Copyright Association ” and “ The Society of Authors^ in which most, if not all, of the provisions of the Lord John Manners Bill have been incorporated. This Bill only awaits the chance of a favourable hearing in Parliament to become law, and so set at rest for ever the many anomalies which the Commissioners have pointed out, pending which I have thought it well to retain here the sugges- tions of the Commissioners — with a revision of my own remarks thereon — so far as they have been affected by time and circumstance. I shall also add here and there such items of inf or mation on the present Law of Copyright as I have found useful myself, and which may also prove useful to others. In this I shall be mainly guided by that admirable Digest which Sir James Stephen presented in the Report of the Royal Commissioners, 1878. I shall note, as far as practicable, any points wherein these recommendations of DURATION OF COPYRIGHT. 9 the Commissioners differ from the Bill above referred to, which it is hoped may become law during the present session of Parliament, and the Text of which will be found in Appendix III. The first point to which the Commissioners drew attention with reference to the existing law was that “ its form as distin- guished from its substance is 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.” The first object of the Commis- sioners was therefore to reduce the unintelligible and hetero- geneous mass of which the various Copyright Acts are com- prised into an intelligible form, and they dealt with all these subjects systematically under the following headings : — Home Copyrights — Unpublished Works — Necessity for Copy- right — I'he Royalty System — The Term of Copyright — Books University Copyright — Place of Publication — Persons capable of obtaining Copyright — Immoral, irreli- gious, seditious, and libellous Works — Abridgment of Books — Dramatic Pieces and Musical Compositions — Dramatisation of Novels — Lectures — Newspapers — Fine Arts — Sculpture — Painting — Assignment of Copyright on sale of Pictures — Architecture — Registration and Deposit of Copies — Forfeiture of Copies — Public Libraries — Music and the Drama — Penalties — Fine Arts — Infringement — Piracy of Lectures — Colonial Copyright — International Copyright. In the following remarks I propose to consider the subject of copyright chiefly with regard to the various aspects in which the interests of authors and publishers of books are affected. DURATION OF COPYRIGHT. The Commissioners propose : — 1 . The same term as that adopted by Germany, viz., for life and thirty years. 2. If, by convention, a common term should be fixed in all 10 COPYRIGHT. countries, power should be given to adopt the term fixed by such international arrangement. 3 . In case of posthumous and anonymous works and of Ency- clopaedias, the period should be thirty years from date of deposit at British Museum ; in case of anonymous works the author should be allowed, during the period of thirty years, by attaching his name to an edition of his work, to secure the full time of life and thirty years. 4 . Copyrights in existence at time of passing the Act should be extended to proposed term of copyright, subject to a proviso guarding against the alteration of existing con- tracts between authors and publishers. In no case should the duration of existing copyrights be abbre- viated. 5 . Copyright in essays, articles, or portions of reviews, magazines, or other periodical works of a like nature, if written by various persons for a proprietor, the same rights shall belong to him as to the author of a book, except that a right of separate publication reverts to the author after twenty-eight years, for the remainder of the period of copyright, and during the twenty-eight years the proprietor of the work cannot publish the articles separately without the consent of the author or his assigns. It is now proposed that the right of separate publication should revert to the authors of the articles at the expiration of three years instead of twenty-eight, and that this provision should be made retrospective. This does not apply to articles in Ency- clopa3dias, which separately belong to the proprietor of the Encyclopaedia, for the full period of thirty years. 6. It is recommended, with reference to articles in maga- zines, &c., as above, that during the period before the right of their publication reverts to the author, he should be entitled, as well as the proprietor of the magazine or periodical, to prevent an authorised separate publication. The above proposals are somewhat modified by the Bill before mentioned (see Api^eiidix III.). DUKATION OF COPYRIGHT. 11 The following and subsequent extracts taken from Sir James Stephen’s ‘ Digest ’ furnish a brief summary of the leading features of the present copyright law. Book defined — Law of Copyright in Books. The word “ hook ” means and includes every volume, 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 copyright 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 . Tile life of the author, and a term of seven years, beginning from his death. If the publication takes place after the authors death, the proprietor of the authorh 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 a,uthor. If the publisher or proprietor of any encyclopedia, review, magazine, or periodical work, or work published in parts or series, employs 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 tike nature \not being an encyclopaedia?^, the right of publishing 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, with- out 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 publish the same as part of such periodical work. I In order to provide against the suppression of books of importance to the public, the Judicial Committee of the Privy Council are empowered, on com- plaint that the proprietor of the copyright in any book after the death of Us 12 COPYKIGHT. author has refused to rejpuhlish or allow the repuhlication of the sarm, and . that hy reason of such refusal such hooh may he withheld from the public, to grant a license to such complainant to publish such booh in such manner and subject to such conditions as they thinh fit, and the complainant may publish such booh accordingly. It applies — 1. To all boohs published after 1st July, 1842. 2. To all boohs published before that day in which copyright was then subsisting, unless such copyright was vested in any publisher 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 cfc 6 Viet. c. 45, in a form provided in a schedule therein. Who may obtain Copyright in Boohs. In order that copyright in a published booh may be obtained, the booh must in all cases be published in the United Kingdom. The author or other person seehing 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 booh is immaterial ; or (b) A person who at- the time of the publication of the booh in which copy- right is to be obtained owes local and temporary allegiance to Her Majesty by residing at that time in some part of Her Majestffs dominions. It is probable, but not certain, that an alien friend who publishes a booh in the United Kingdom while resident out of Her Majesty's dominions, acquires copyright throughout Her Majesty's dominions by such publication. Previous and Contemporary Publication out of the United Kingdom. No copijright in a booh published in the United Kingdom can be obtained if the booh has been previously published by the author in any foreign country, but the contemporaneous publication of a booh in a foreign country and in the United Kingdom does not prevent the author from obtaining copy- right in the Cnited Kingdom. It is uncertain whether an author obtains copyright by publishing a booh 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 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 booh in such part of Her Majesty's dominions. CROWN COPYRIGHT. 18 CROWN COPYRIGHT. “ ]t 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 authorised version of the Bible ^ of the Booh of Common Prayer, and (possibly) the text of Acts of Parliament.''^ The words “ It is said ” seem to deprive this statement of absolute authority. Her Majesty's Sta- tionery Office recently learned publishers that there is '"‘‘no difference as to copyright between the publications of the Government and of private indivir duals," but “ it is not the intention of the Stationery Office to interfere vnth the privileges hitherto allowed to newspapers of publishing information of public interest extracted from parliamentary papers or the official Gazettes.'" UNIYEKSITY COPYEIGHT. It appears that at present the University of Oxford possesses six copyrights in perpetuity, and that the University of Cam- bridge has none, and the Commissioners are of opinion that this exceptional privilege should be omitted from the future law, and the Universities and other institutions placed on the same footing as other copyright owners, not, however, without their consent as regards existing copyrights. According to Sir James Stephen “ the universities of Oxford, Cambridge, Edinburgh, 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 Winchester have for ever the sole liberty of printing and reprinting all such books as have been or here- after may be bequeathed or given to them by the authors thereof, or by their representatives unless they were given or bequeathed for any limited term." It should be added that this right only exists for books actually printed at their own printing presses within the said universities or colleges respectively, and for their sole benefit and advantage. PLACE OF PUBLICATION. Under the existing law, copyright can be obtained, ^rs^, by ^ a natural born or a naturalized subject of the United Kingdom secondly, by a foreigner residing at the time of first publication in the United Kingdom ;* and thirdly, by an alien friend first publishing in the United Kingdom,* though he may never * By the International and Colonial Copyright Act, 1886, before referred to and given in full in the Appendix, the words United Kingdom may now read “a British possession." See also clause 7 of the new Bill given in Appendix III. 14 COPYRIGHT. have resided therein. This latter case has been disputed, but in a well-known trial {Low v. Boutledge) it was distinctly laid down by Lord Chancellor Cairns in these words : — “ The aim of the Legislature is to increase the common stock of the literature of the country ; and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien who has never been in the country, I see nothing in the wording of the Act which should prevent, and everything in the professed object of the Act, and in its wide and general provisions, which should entitle a person to the protection of the Act in return, and compensation for the addition he has made to the literature of the country.” This opinion of Lord Cairns, although it has not the value of an absolute decision, has never since been seriously disputed, and it is now recommended to be made absolute by statute. Sir James Stephen says in reference to this, ‘‘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." Of course the new International AND Colonial Act, 1886, extends this probability to all the British pos- sessions. The New Copyright Bill if passed will convert this probability into certainty. There are other anomalies in the existing state of the law, more especially as regards the colonies, the chief of which seem to have arisen from the fact that the aim of the copy- right law being, as pointed out by Lord Cairns, “ to increase the common stock of literature ” within the United Kingdom, the term could not be made to apply to the colonies. Thus, as was pointed out in the evidence before the Commissioners, a foreigner publishing an English work first in England may obtain copyright in England and the colonies ; an Englishman publishing first abroad will lose his copyright at home ; a colonist who publishes first in his own colony cannot obtain copyright in Great Britain. 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 EEGISTKATION AND DEIOHIT OF COFIFS. 15 Kingdom or in any of the colonies unless there be some local law in the colony of publication under which he can obtain it within the limits of that colony. To remedy these evils, the Commissioners recommend that, where a work has been first published in any one of the British 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 if the work had been first published in the United Kingdom ; and that a British author, who publishes a work out of the British dominions, shall not be prevented thereby from obtaining copyright within the same by a subsequent publica- tion therein, provided such republication be within three years of the first publicatfon. And as to aliens, the Commissioners suggest giving them ‘‘ the same rights as British subjects, if they first publish their works in the British dominions.” {The anomalies and evils above ^pointed out are now ha]ppily all done away with by clause S of “ The International and Copyright Act, 1886.” See Appendix 1.) KEGISTKATION AND DEPOSIT OF COPIES. With reference to registration under the present system there can scarcely be two opinions that, as the Commissioners say, “ it is practically useless, if not deceptive and as it is optional, and “ the fees unnecessarily high,” it is seldom resorted to except in cases of infringement, as no action can be maintained until registration has been performed. Under the existing law the fee for entering any book, right of representations of a dramatic piece, or musical composition, is five shillings. The plan which the Commissioners propose to adopt seems to be one which should be well considered by all interested in the subject ; they are satisfied that registration should be insisted upon, that it should be made compulsory, and that — • “ A copyright owner should not he entitled to take or maintain * Sir James Stephen says this is uncertain. 16 COPYRIGHT. any proceedings, or to recover any penalty in respect of his copy- right until he has registered, and that he should in no case he able to ^proceed after registration for preceding acts of piracy . * And they adopt this apparently severe penalty because other- wise “ the compulsory provisions of the law would to a certain extent be naturalized.” They think, however, that, as a rule, registration would be effected immediately on publication, and before the work could be copied.” Of this there can be little doubt ; and to insure themselves, authors, in making their agreements with publishers, might insert a clause which would throw the whole onus of registration upon the publisher, and the penalty incurred by piracy. The Commissioners, however, propose to provide an interim period of protection of one month after publication. It is proposed that the two Acts of registration and deposit should be combined, thus making registration, as deposit now is, compulsory, and the fee for such registration one shilling. That a Eegistrar should be appointed, whose certificate should be primd 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. An author or publisher might be disposed to grumble at this compulsory shilling fee, and think it would not seem unreasonable that the value of the book deposited should be regarded as an equivalent for the certificate ; as, however, this certificate carries copyright with it, he should rather be delighted at having such a cheap and simple means of maintaining his rights. Even if compulsory registration did not carry copyright, it would still be most valuable as being the best means of forming a complete record of all books published. A difficulty seems to have arisen as to place of regis- tration, the British Museum authorities being unwilling to undertake the responsibility ; and therefore as the Stationers’ Company are prepared to enlarge their premises to any extent that may be required, there can be no special object gained by removing the office of Eegistrar from Stationers’ Hall, pro- * Which means that pirated editions printed and published before registra- tion may continue to be sold afterwards, but they cannot be reproduced. PUBLIC LIBRARIES. 17 vided, of course, that the proposal can be fully carried out there under the control of Government. This recommendation of the Commissioners was not unani- mously agreed to. According to the 'present Imjo^ no proprietor of cop'yright in an'y hook can take any proceedings in respect of any infringement of his copyright unless he haSy before commencing such proceeding Sy caused wn entry to he made in the Register at Stationers^ Hall ; hut the omission to make such entry does not affect the copyright in any hooky hut only the right to sue or proceed in respect of the infringement thereof* PUBLIC LIBRARIES. From the time of Charles II. to the present time, it has been the privilege of five great public libraries, viz., the British Museum, the Bodleian Library at Oxford, the Library of the Faculty of Advocates at Edinburgh, the Public Library at Cambridge, and the Library of Trinity College, Dublin, to demand gratuitously one or more copies of every book pub- lished. As a publisher, I can bear testimony to the fact that this is felt to be a very heavy and burdensome tax, in many cases an intolerable one, as it applies indiscriminately to six- penny pamphlets, and to works published at twenty or thirty guineas, of which, perhaps, not more than a hundred are printed. The compulsory gift of five copies of such works not unfrequently converts a small profit into an absolute, heavy loss. It is very satisfactory to find that the Commissioners join with one voice in recognition of the injustice of taxing authors and publishers for the maintenance of wealthy public libraries, and very justly ask why the public, or the bodies to be bene- fited, should not pay for the books they require. The con- clusion they have come to is that “ so much of the existing law relative to the gratuitous presentation of books to libraries, as requires books to be given to libraries other than the British Museum, should be repealed.” The Commissioners, it will thus be seen, do not propose to See also Clauses 10 to 25 of new Bill in Appendix III. 18 COPYRIGHT. interfere with the gift of one copy to the British Museum, and to this, when coupled with the copyright certificate proposed to be given on its receipt (on payment of a fee of a shilling), there can be no reasonable objection on the part of authors or publishers. NON-COPYRIGHT IMPORTED BOOKS. It has long been a matter of dispute between the authorities of “ The British Museum ” and certain publishers in the habit of im- porting American boohs, and for the convenience of the public printing their names on the title-pages, as to the liability of the latter to deliver copies of these non-copyright American boohs to the British Museum and the other public libraries. On the face of it one would suppose that every section of an Act of Parliament, the whole tenour and gist of which is the maintenance of copyright, could only apply to boohs which were so protected. The authorities of the British Museum, acting on counsel’s opinion, have always demanded such boohs — whilst the publishers, finding the burden intolerable of being compelled to deliver up five copies of every worh, no matter how expensive it may be, or how few the copies {it may be only fifty or a hundred) imported, have resisted this demand, without, however, going the length of trying the question in a court of law. They recently brought the question under the notice of “ The Copyright Association,” who at once determined to take counsel’s opinion on the question — more particularly with reference to the construction of sections 6,7,S,9, of 5 dt 6 Victoria, cap. 45 — the two latter sections having special reference to the delivery of books to the libraries of Oxford, Cambridge, Edin- burgh, and Dublin. Accordingly, the following questions were put to counsel : — (1) Whether a copy imported from New York of the book ‘ X ’ first published here by New York publishers, such coi)y being one of a certain number imported by a London firm of publishers for sale in the United Kingdom, and bearing their imprint on the title page, must be delivered at the British Museum under 5 & G Viet. cap. 45, sec. 6. Coun^eVs opinion. — Yes. (2) Whether a copy of a reprint published in the United Kingdom of a foreign book, i.e. of a book first published abroad — not possessing copyright in NON-COPYKIGHT IMPORTED BOOKS. 19 England under the International Copyright Acts, must be delivered to the British Museum under the said Act of 5 & 6 Viet. cap. 45. sec. 6. Counsel's opinion. — Yes. (3) Whether a copy of the new edition of ‘ Y ’ by a late English author, the imperial copyright in the original hook which was duly deposited having expired, and the new edition being merely a reprint without additions and alterations of the original hook, or of an edition thereof already deposited, must he delivered to the British Museum under the said Act of 5 & 6 Viet, cap. 45, sec. 6. Counsel's opinion. — No, there being no alterations or additions. (4) Whether a copy of a reprint published in the United Kingdom of a hook originally possessing imperial copyright under the International Copy- right Acts and Conventions, hut in which such copyright has expired, must he delivered to the British Museum under the said Act of 5 & 6 Viet. cap. 45, sec. 6. Counsel's opinion. — No, if the hook was originally delivered to the British Museum and the reprint contains no alterations or additions. Yes, if the reprint contains alterations or additions. Unfortunately section 6, as counsel admits^ is not very clear when considered in the light of American importations, although it cannot he doubted that those who framed the Act could only have had copyright books in their minds, still a literal construction of it can only lead to the one conclusion at which counsel has arrived. It says “ that a printed copy of the whole of every hook which shall be published after the passing of this Act,” &c., &c. Of course if an English publisher issuing ever so small an edition of an American booh with his own name on the title-page, either in conjunction with or without an American publisher's name, is to be considered as having published the work, no more can be said. The counsel employed by “ The Copyright Association " were Sir Henry James and Mr. F. F. Daldy, Barrister-at-Law. Their opinion, as will be seen above, being adverse to the clUims of publishers, they will have to submit, or no longer append their names to the title-pages of boohs first published in America — unless any one or a combination of them would boldly settle the matter in a court of law. It must be remembered that under the law the Museum is entitled to a copy of the best edition of every booh published in the United Kingdom, de- livered at the British Museum. The other libraries, only on demand, are entitled to boohs printed upon the paper of which the largest number of copies of such boohs or editions shall be printed for sale. As an interval of twelve months is allowed after publication, cheap editions may therefore be sent to these libraries. N.B. Clause 11 of the new Bill will put this matter right, for it says, “ The copyright owner " must deliver, &c. — which surely cannot cover a non-copy- right booh. {See Appendix III.) 20 COPYKIGHT. COPYBIGHT 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 publication of any copy of it by any other personP COPYRIGHT IN LETTERS. “ A person who writes and sends a letter to another retains his copyright 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 addressed, or to his represen- tatives, 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 trans- fer itf 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 circum- stances 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} ap- pearing, undefall the circumstances of the case, reasonable in quality, number, and length, regard being had to the object with which the extracts are made and to the subjects to which they relate. “(c.) Using one book on a given subject as a guide to authorities after- ward 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 he an original work if it is produced by a fair use of the original or originals from which it is abridged, but the republication 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.^’’ NON-COPYRIGHT IMPORTED BOOKS. 21 PENALTIES FOR INFRINGING COPYRIGHT IN BOOKS. Every one is liahle to an action who, in any part of the British do- minions — (a.) Prints or causes to he printed, either for sale or exportation, any hook in which there is subsisting copyright, without the consent in writing of the proprietor ; (b.) Imports for sale or hire any such hook so having heen unlawfully printed from parts beyond the sea ; (c.) Knowingly sells, publishes, or exposes to sale or hire, or causes to he sold, published, or exposed to sale or hire, or has in his possession for sale or hire any hook so unlawfully printed or imported. The action must he brought in a Court of Record and within twelve months after the offence. SPECIAL PENALTY FOR UNLAWFULLY IMPORTING COPY- RIGHT BOOKS. The following conseguences are incurred by every one, except the proprietor of the copyright of any hook, or some person authorized by him, who imports or brings, or causes to be imported or brought [/or sale or hirel, into the United Kingdom, or into any other part of the British dominions, any printed book in which there is copyright, first composed, written, or printed \_and publishedl 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 securing to British authors reason- able 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. 22 COPYRIGHT. FIRATED COPIES FORFEITED TO REGISTERED OWNER. All copies of any work in which there is a duly registered copyright unlaw- fully printed or imported without the consent in writing under bis hand of the registered proprietor of the copyright are deemed to he 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 writipg. See also New Bill, Appendix III. DRAMATIC PIECES AND MUSICAL COMPOSITIONS. With regard to the duration of copyright in dramatic pieces and musical compositions, the Commissioners “ recommend that both the performing right and the literary right should he the same as for hooks.” They further pro- pose, “ in order to avoid the disunion between the literary and the performing rights in musical compositions and dramatic pieces, that the printed publica- tion of such works should give dramatic or performing rights, and that public performance should give literary copyright. For a similar reason it would be desirable 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.” The present law is — The author, or the assignee of the author, of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment or musical com- position. . . . 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 probably for whichever is the longer of the two following terms, viz . : — (1.) Forty-two years from first representation. (2.) Life of the author and seven years from his death. The above exclusive right cannot be gained if the works have been printed and published in a book before the first representation ; Or, if they have been publicly represented in any place out of Her Majesty's dominions before representation in them, except under the International Act. 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 assignment of the coppright of any such book conveys to the assignee the right of representing or performing such dramatic piece or .musical 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. 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. NON-COrYKIGHT IMPORTED BOOKS. 23 INFRINGEMENT OF COPYRIGHT IN A MUSICAL COMPOSITION. Co'pyright in a musical composition is infringed when a substantial portion of the music in which copyright exists is reproduced either without any altera- tion or with such alterations as are required to adapt it to a different purpose or instrumerd^ the alterations being of such a character that the substantial identity between the original and the altered version can be recognized by the ear. (See also the New Bill, Appendix III.) DRAMATISATION OF NOVELS. The Commissioners “have come to the conclusion that the right of drama- tising a novel or other work should he 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.” They add, “We are disposed to think that the right of dramatisation should he co-extensive with the copy- right. It has been suggested, in the interest of the public, that a term, say of three or five years, or even more, should he allowed to the author, within which he should have the sole right to dramatise his novel, and that it should be then open to any one to dramatise 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 convenience of making the right of dramatising uniform in its incidents with other copyright.” The present law is — 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 booh 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. (See also New Bill, Appendix III.) COPYRIGHT IN MAPS, CHARTS, OR PLANS. Sir James Stephen does not refer to these in his Digest, and the law does not seem to be very clear. Copinger says, “ It is an extremely difficult thing to establish identity in a map or a mere list of distances, but there may be originality in casting an index or pointing out a ready method of finding a place in a map.” It seems clear, however, that although any one who has the intention of publishing a map may take advantage of all prior publications, he cannot servilely copy an original work. Copinger quotes Lord Eldon, who said : “ I admit that no man can monopolize such subjects as the English Channel, the Island of St. Domingo, or the events of the world ; and every 24 COPYRIGHT. man may take what is useful from the original work^ improve^ add^ and give to the public the whole, comprising the original work, with the additions and im- provements.^^ In the “ Bill to Consolidate and Amend the Law of Copyright ” now before Parliament, “map,” “ chart,” or “ plan ” fall in the same category as “ books.” See Definitions, clause 4, in the Bill (which will be found in the Appendix). COPYKIGHT IN THE COLONIES. As the British copyright law extends to all the British pos- sessions, with certain reservations by Order in Council as regards some of them, and with no reservation as regards the very important book-buying colonies of Australasia, it follows that these colonies must depend wholly for the supply of English copyright literature upon the mother country ; and that they must pay for this English literature at English prices, with extra charges of carriage, insurance, and commission added. This has by some been regarded as a great hardship to young and not always affluent colonies. As a publisher, having very large transactions with the colonies, I am enabled to say that prac- tically no such hardship exists. Booksellers in the colonies are supplied by English publishers on such exceptionally liberal terms as to price and extra length of credit, that they are enabled to, and do, offer English books to their customers at the home puhlished price without any extra charge whatever. Colonists, therefore, as regards English books, are placed upon an equal, if not even a better, footing than Englishmen at home. There doubtless are some exceptions with regard to certain technical or high-priced books on which the usual liberal discounts cannot be allowed, but, as a rule, colonists have no hardship to endure and no cause of complaint, nor have I ever heard of complaints on this head ; nor indeed should there be any such complaints, seeing that these markets are abun- dantly, even plethorically, supplied with books of all kinds and at all prices from sixpence upwards. It is to be regretted that in this instance the Commissioners allowed themselves to be misled by those impracticable theorists who have a craze about cheap literature. “ The main griev- ance,” they say, “ lies in the difficulty experienced by the COPYRIGHT IN THE COLONIES. 25 colonists in procuring at a sufficiently cheap price a supply of English copyright books.” It has already been shown that the Australasian (if not other colonies), not yet smitten by the greed of piracy, experience no such difficulty. They are at least on a par with residents in the United Kingdom, even to the possession of “ book clubs, book societies, and circulating libraries.” The Commissioners recommend that this imaginary difficulty should be met in two ways. First. By the introduction of a licensing system in the colonies.* * Secondly. By continuing, though with alterations, the provisions of what is called the Foreign Reprints Act.* t It is difficult to conceive why the Commissioners should have considered any such cumbrous machinery necessary. They have fully recognised the fact that the Imperial law should extend to the colonies, not merely as it does at present, but also by abrogating the necessity for first publication in the United Kingdom.J If they would let the matter rest there, all other difficulties would right themselves. If copyright is property, why should it be vexed with such petty inter- ferences ? * Which means, “ that in case the owner of a copyright work should not avail himself of the provisions of the Copyright Law (if any) of the colony, and in case no adequate provision be made by re-publication in the colony within a reasonable time after publication elsewhere, for a supply of the work sufficient for general sale, a licence may upon application be granted to republish the work in the colony, subject to a royalty in favour of the copyright owner of not less than a specified sum per cent.” * In order to secure the rights of copyright proprietors, it is suggested that “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 for the author.” t The new Bill (clauses 37, 38) on “ Copyright in the British Possessions,'^ goes into no detail on this subject. (See Appendix.) X It should he mentioned that this proposal of the Commissioners has now become law. Clause S of The International and Colonial Copyright Actf which was passed June 25, 1886, the full text of which will he found in the Appendix, specially enacts, that with certain needful provisions therein mentioned, “ The Copyright Acts shall apply to a literary or artistic work produced in a British possession in like manner as they apply to a work first produced in the United Kingdom." 26 COPYRIGHT. The natural law of supply and demand would certainly settle the question of cheap editions, far more satisfactorily than any legislation. If any particular work is in very large demand in any colony, the author and publisher may be safely trusted to supply it, either by printing a special cheap edition at home to send out, as is now constantly done, or else by arranging with a colonial publisher to print it in the colony (and the Imperial Act does not prevent that being done) ; why then worry either author or publisher with a legislative enactment to enforce it, which will cramp his independence, mulct him of his reasonable share of profits, and benefit the public not one iota. The licensing system by local law and Orders in Council cannot fail to be cumbersome and expensive, and however strictly observed must necessarily be unsatisfactory to all con- cerned, especially to the author, besides being, as has been shown above, wholly needless for the object in view, especially to such colonies as those of Australasia, which are by far the largest consumers of English books. Moreover, how can an author or publisher in England know that his rights are properly protected ? Will the Govern- ment appoint a protector of British copyright interests in the colonies ? The Foreign Keprints Act, as proposed (see ‘ Copyright in Canada,’ p. 29), which was found to be so utterly inoperative in the Dominion of Canada, is totally unnecessary in the Australasian Colonies, under any modifications — such as stamp- ing of copies — simply because all that it provides for can be, and is, fully accomplished at present without it, by the intimate commercial relations betwixt home and colonial publishers. The West Indian, the Cape, and other colonies probably draw a large portion of their supply of English literature from the American reprints under the Foreign Eeprints Act, at present with no appreciable benefit whatever to authors ; it may be well perhaps for the Commissioners (or rather the pro- moters of the Bill now before Parliament) to revise this system so far as these colonies are concerned : and, generally speak- ing, if instead of devising unnecessary plans for catering to imaginary wants of colonial readers by making enact- COPYRIGHT IN THE COLONIES. 27 ments to supply them with cheap literature (with which they can be, and are, abundantly supplied without), the Commis- sioners would turn their earnest attention to devising some strong measures for the real protection of authors’ interests, by absolutely excluding unauthorised reprints from colonies where they are not wanted, they would be doing good service to copyright owners. Whilst writing, I have just received a case in point : — the Booksellers’ Association op Melbourne, under date tho^ 31st of December, 1878, send me a circular complaining bitterly that — “ Great exertions are being made throughout the Australian colonies, hy the agents of American publishing houses, to drive a trade in books ; nor do they confine these exertions to American litera- ture, but reprints of British copyright works are from time to time introduced and openly ofiered for sale. ... A glaring instance is a pirated abridgment of Dr. Wm. Smith’s ‘ Dictionary of the Bible,’ of which hundreds of copies have been sold.” It appears that by “the vigilance of the Commissioner of Customs ” consignments have occasionally been confiscated ; but that system, though useful, is not always efficacious, as “ in the first place means are often found to elude the watchfulness of the Custom House authorities ; and, secondly, some of the officials in our various colonies may be disposed to treat attempts to evade the law in reference to reprints with indifference f Have they been so educated by the Board of Trade? It will thus be seen that the pressure for cheap literature is not from within the colonies, it is a pressure from without of enterprising Yankees, endeavouring to evade our laxly-kept Customs laws, and cramming piratical works under the noses of the colonists ! Presently we shall be told that the hungering and starving colonists are pining for this forbidden fruit ! Indeed this is the kind of “ grievance ” fostered by the Board of Trade and needlessly recognised by the Commis- sioners. {The complaint referred to above in 1878 prevails still in 1887.) 28 COPYRIGHT. COPYKIGHT IN INDIA. On this subject the Commissioners are strangely silent, although it is one about which copyright owners and publishers should be well informed. Sir Charles Trevelyan in his evidence stated that “an Indian Act gave powers in 1844 to the Secretary of State, by which foreign copies could be imported on payment of a Customs duty of 10 per cent. ; but,” says Sir Charles, “ the question of importing foreign reprints into India has not practically arisen, because India is entirely free. The demand of India is supplied to a great extent from America” This is by no means clear, but if it means that India gets her supply of American native-born literature — that is, literature which is not reprinted from Eng- lish authors — and if India imposes a duty of 10 per cent, thereon for revenue purposes, well and good ; but if by foreign copies it is meant that American reprints are so admitted, then a grave injustice is done, which requires looking into. Probably, however. Sir Charles has somewhat overstated the case. In reply to my inquiry from a large Indian book-importing house, I am told that : — 1. English copyright law extends to India, and protects all books, British and Indian. But actions for piracy are barred after twelve months.* 2. American or German reprints (piracies) are not know- ingly admitted. To our knowledge, cases of American reprints have been seized and confiscated. 3. A good deal of piracy goes on in India because it is no ones interest^ or not worth while to check it. Here again, then, American enterprise invades British territory, and the supine Customs ojBScers seem to be quite incapable of coping with the invasion — now and then only is a case con- fiscated. Of course one knows well that the prime duty of a revenue officer is to look after dutiable goods, and the extreme * By the Indian “ Limitation of Suits Act ” action for breach of copyright must be brought within twelve months of publication of Piracy, or it is barred. COPYRIGHT IN CANADA. 29 sharpness he displays in scenting out even the smallest packet of goods upon which duty can be levied, contrasts curiously with his extreme indifference in the case of pirated editions, from which no duty is obtainable. As in Australasia, so it is in India. It thus appears that the machinery for stopping the importations, by means of her Majesty’s Customs, is lax and ineffectual everywhere, and surely this is a most important matter for consideration. Probably clauses 37 and 38, taken in connection with clauses 5, 6, and 7 of the New Copyright Bill, will be found sufficient to prevent a continuance of this evil. It is certainly to be hoped that every British Possession will make ‘‘ satisfactory provision, with suitable penalties, for carrying these clauses into effect COPYEIGHT m CANADA. Here the case is different. Canada’s great freebooting neighbour has for generations pounced upon the cream of English literature — quite regardless of the question of meum and tuum involved in the word property, which all other civilised nations have now fully recognised — and being un- trammelled by authors’ rights, has freely reprinted all good English books in an inferior style, and at prices considerably lower than the original English prices. The temptation to obtain these cheap reproductions was naturally too strong to be resisted by the Canadians, and in spite of Imperial law to the contrary, they imported these reprints freely. Consequently, in 1847, a Colonial Act (which has been termed the Foreign Eeprints Act) was passed and sanc- tioned by Order in Council, and which permitted Canadians to import American reprints on payment of a Customs duty of per cent., the proceeds to be paid over to the British Government for distribution among the authors interested. The result, however, to British authors was so absurdly trifling as to make the law ridiculous, and American reprints somehow got into the Dominion, perhaps more largely and quite as freely as before. It is due, however, to the Canadian Government, to say that 30 COPYRIGHT. it has always fully recognised English rights, and has made strenuous efforts to protect them. In 1875 an Act was passed in the Dominion (to which Imperial assent has been given), which granted to any person domiciled in Canada, or in any part of the British dominions, or being the citizen of any country having an International Copyright Treaty with the United Kingdom, who is the author of any literary or artistic work, power to obtain copyright in Canada for twenty-eight years by printing and publishing, or reprinting and republish- ing, his work there;* the chief conditions being that the author shall furnish a written description of his work to the Minister of Agriculture, who shall cause the copyright to be recorded, and a copy of the said work to be deposited in the library of the Parliament of Canada. Notice of the copyright being thus secured is to be stated on the title-page or following page ; and apparently with the view to prevent the importation of American reprints before the Canadian edition could be brought out, an important clause is inserted in the Act by which an interim copyright is granted, but such interim protection only endures for one month from the date of the original publication elsewhere, within which period the work must be printed and published in Canada. Notice of said interim registration must be inserted in the Canada Gazette. A penalty not exceeding 100 dollars is incurred if any person fails to print and publish the said work within the prescribed time. This Canadian Copyright Act, although it has been, like all previous ones, strongly objected to by some English authors and publishers, seems to be conceived in a spirit wholly bene- ficial to English authors, and is admirably calculated to promote their interests ; inasmuch as it throws the whole onus of protecting them against American reprints on the very people who are most interested and best able to protect them, viz., the Canadian publishers.f * The plates may be made elsewhere, but the work must be printed in Canada. t It is a curious fact that many English authors, instead of availing them- selves of this means of securing their copyright in Canada, abandon their INTRODUCTION OF REPRINTS. 31 The whole state of the law as regards Canada may be thus epitomised : — 1. By the International and Colonial Act, 1886, any native or foreign resident in Canada first puhlishing his work there or in Great Britain or in any British possession, gets copyright throughout the British Dominions. 2. The works of a British author cannot he reprinted in Canada without his permission, hut if he does not comply with the Canadian Law, reprints may he imported into Canada from foreign countries (on payment of the Customs Duty aforesaid). 3. The works of a British author who complies with the Cana- dian Law can neither he reprinted in, nor imported into, Canada without his permission. INTKODUCTION OF KEPKINTS. It has been objected that these Canadian cheap reprints may find their way back to the United Kingdom, to the serious injury of the home editions. On the other hand, it has been seriously urged that, as these reprints are produced by the sanction of the author, it is a right and proper thing that they should come into England for the benefit of the English public. As to the possibility of such books coming in surreptitiously, and in spite of the present safeguards, I cannot think that this can be done to any serious extent. Ko bookseller would venture to sell them openly ; for although they are published by the author’s sanction, that sanction is expressly for sale in the Dominion of Canada, and in no other British possessions.* * colours for filthy lucre, go over to the enemy, and make arrangements with American publishers, whereby, for a consideration which they believe to be larger than they could obtain in Canada, the American edition is to have full circulation in Canada. In this case the American publisher arranges with some Canadian whose name appears in the imprint of the Canadian portion of the edition. * In the Edinburgh Review for October, 1878, which contains a most able and exhaustive essay on the evidence before the Commissioners, and which ought to be reprinted separately and circulated largely, I find the 32 COPYRIGHT. The Tauchnitz reprints are all published by the sanction of the English author; but although doubtless many English travellers on the Continent manage to smuggle small supplies into this country, it is sufficient to say that such importations are perfectly illegal, and cannot be brought in to any appre- ciable extent. Baron Tauchnitz takes every possible precaution to prevent copies coming to this country : perhaps a more strict examination of passengers’ baggage by Customs officers would be desirable ; probably, however, these officers only trouble themselves with articles liable to duty; books are not. As to the advisability of admitting such reprints, that is a question raised only by theorists possessed of notions almost too transcendental for a practical man to deal with. ‘‘ The greatest good of the greatest number” is a political axiom which scarcely implies that the greatest number is to obtain this good by plundering the few ! As it happens, however, that her Majesty’s Board of Trade entertains very lax views on this subject, and advocates the promulgation of cheap literature at any sacrifice of its pro- ducers, it may be that her Majesty’s Customs officers are imbued with the same views, and would nod or wink ap- provingly at a bundle of Tauchnitz under the arm of an enterprising traveller. The injustice of such a proceeding as that of admitting cheap reprints into England to compete with English editions, must be obvious to all who are not imbued with M. Proudhon’s celebrated socialist theory that “Property is robbery ^ A common mode of proceeding between author and publisher is that the , author sells his work, or a share of it, or a first following remark : “ By the Act of 1875, the colonists are allowed to reprint English hooks, with the authors' consent, for their own consumption, and for any market which they can obtain outside the United Kingdom." The reviewer should have said, “ outside all other British dominions" Because, although the Imperial Act says it shall be unlawful to import such reprints into the United Kingdom, it further states that in other respects the said Act shall be governed by the Copyright Act (5 & 6 Viet.), which treats such books “in the same manner as if they had been reprinted out of the Britisli dominions.” INTRODUCTION OF REPRINTS. 33 edition, to his publisher, reserving to himself the right of any benefit he can obtain from reprints or translations abroad, it being fully understood that such reprints are intended only for circulation abroad. The publisher then takes upon himself all the risks and costs of producing the work, and pays the author an agreed price, which, in case of books worth reprint- ing abroad, is a pretty high one, and he fixes his selling price precisely at what he conceives would be most likely to protect himself from loss ; for in three cases out of four, loss is the probable result. A publisher is content if he can feel himself secure from being too severely mulcted. He takes his risk deliberately and with abundance of experience to guide him, hoping that at least one out of the four shots he fires at the uncertain public may hit it in a tender place and cause a run which will remunerate for powder and shot wasted on the other three. The theorists comfort the author by telling him that he would be benefited, rather than injured, by the admission of colonial reprints, inasmuch as he could exact a very much higher price from abroad than he can now ; and so, truly, he would, for any Colonial or Continental publisher would be delighted to pay him much more if they had English pastures to feed upon as well as their own. But would English publishers continue to pay him as much? Would any publisher in his senses pay an author largely and expend money in the production of expensive books with such palpably dishonest competition staring him in the face ? According to the Commissioners’ Keport : — “ The arguments pf the Secretary of the Board of Trade in favour of admission of colonial reprints are based on considera- tions 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.” It is also urged that this same British public is grievously wronged by being “ debarred from participating in the advan- tages of cheap colonial editions.” In the existing state of things, D 34 COPYRIGHT. I think it may fairly be said that of all the books printed in Great Britain not 5 per cent, are reprinted in the colonies and on the Continent (I have classed Tauchnitz’s editions with the colonial, although the theorists apparently do not), and I venture to say boldly that the effect of such importations on the prices generally of other books would be absolutely nil, nor could the importation of reprints under any conditions affect the price of books not so reprinted. The high or low price of books depends upon an almost infinite variety of things, and, not the least, upon the caprice of the public, which will buy large editions of books at 21a. or 42s. and oftentimes refuse to touch a cheaper edition at 10s. or 12s. or less. The advocates of “ cheap literature ” find a strong argument in the fact that three-volume novels are sold at the high price of 31s. 6cZ. ; but the argument loses its value when it can be fairly stated that the only purchasers of these works are the circulating libraries, and if ever Mr. Farrer’s pet, that “ many- headed monster,” the public, invented anything, it was the circulating library system, simply because it prefers borrowing to buying. At all events, publishers did not invent the system ; they would greatly prefer being certain of selling 5000 or 6000 of a work at 5s. or 6s. to the public, to selling 400 or 500 in three vols. at 31s. OtZ. to the libraries. The truth is, the three- volume form is the crucible by which the public tests, not always or specially the literary value of a work, but its suita- bility and adaptation to its shifting tastes. If a work takes well in three volumes, it does not always follow that it will sell in a cheap form, but it is some guide for a publisher ; if a good book fails in three volumes, its chances in a cheap form are gone. On the other hand, this curious public will not buy an original novel, however good it may be, in a cheap form on its first appearance. Some time ago a great outcry was made against this library system, and publishers, always ready to make ex- periments for the good of the public, sorely burnt their fingers by bringing out novels in one volume instead of three, and at 5s. or 6s., instead of 31s. iod . ; the experiment has very rarely succeeded.* * This ouicnj is spasmodic ; it comes out amiually about the time of the “ (jooscbcrry / ” hut nothing ever comes of it! (1887.) INTRODUCTION OF REPRINTS. 35 But, says Sir Charles Trevelyan, the public wants its cheap literature fresh and fresh” from the author’s brain — and thus fresh and fresh it could have it — but Sir Charles gauges all books by Macaulay’s works, which happen to be his own property, whereas the great hungry public is uncommonly dainty in its tastes ; and of the hosts of books offered to it first fresh and fresh in a cheap form, it chooses but a very small portion until time has tested their value. In fact, it would seem after all that the great public is in these matters more discriminating than its would-be instructors. Instead of wanting new books “ fresh and fresh,” however cheap, it prefers to wait, and give a book the test of time before buying it. By the time a novel or any other expensive book has percolated through the circulating libraries, its character has become known : if it suits the public, it will demand and get it, in a cheap form ; if not, it dies. Whether the library system is a good or an evil for the com- munity, it is not for a publisher to judge. It is evidently a system liked by the community ; it certainly enables readers of every class to read expensive books handsomely printed, with large type and good paper, at a merely trifling outlay — books which from their expensive nature could only be procured at a high cost per copy. French and German publishers produce original novels for their public ‘‘ fresh and fresh,” and cheap enough, without the spur or goad of a “ royalty system ” to induce them — they simply follow the tastes of their readers ; English publishers do the same — all they ask is to be let alone. As to the imaginary “ wrong ” thus inflicted on the hungering and thirsting British public, let them rest assured that English publishers are always ready and willing to supply them with as cheap and better editions whenever this hunger and thirst are sufficiently manifested to enable them to enter upon the specu- lation without undue risk to themselves ; and in point of fact they do so now, as all the book-shops and railway stalls in the country abundantly testify. There is some satisfaction in finding that the Commissioners, with one or two exceptions, do not indorse this proposition ; out of deference, however, to its proposers, they “ think that such D 2 36 COPYRIGHT. works should not be admitted without the consent of the copyright owners I ” This is sufficient ; no author will consent to his own destruction. If the Board of Trade can legislate profitably for such a public, it should certainly take under its protecting wing the entire production of the works of British authors, and extin- guish publishers altogether.* Authors would then write their books to order, and on the royalty system (to which reference is made further on), and the intellectually starving public would doubtless be abundantly supplied with Board of Trade literature. Until, however, that improbable period arrives, the less the Legislature interferes with the business enterprise of publishers, and the more strictly it confines itself to the due and proper protection of literary property, the better it will be for all concerned. THE KOYALTY SYSTEM. Sir T. H. Farrer and Sir Louis Mallet are smitten with the idea that the present system of publishing is a bad one. They, though grudgingly, throw a sop to authors, but the “ parasitic growth of the publishing interest ” with which authors are “ so inextricably intertwined ” is strongly denounced, under the cry of “ monopoly'' The Royalty System f we are told, is — ^ “ The only method by which the interest of the author can he * This is one of the ^'‘dreams of the future’’'' indulged in hy the Incorpo- RATED Society of Authors, 1887. f By this “ Royalty Systein” is meant tliat authors shall be paid a royalty on all copies sold, and that when the book has been once published, it shall be open for all publishers to take it and print it, subject always to payment of a fixed royalty. Thus, if publisher No. 1 publishes at 10s., and the royalty is 10 per cent., the author will get Is. for every copy sold ; No. 2 may publish at 5s., and the author would get Qd. ; No. 3, at 2s. 6d., which would give 3c?. to the author. No. 1 may have expended a large sum in advertisements, corrections, and arrangements generally ; he may even spend a large amount in illustrations, all of which expenses No. 2 and No. 3 would save, and thus No. I’s edition would be ruined — truly “an effectual way of disengaging him from the author.” The author’s chief difficulty would be to find publisher No. 1. THE ROYALTY SYSTEM. 37 effectually disengaged from that of the publisher, and it is con- tended that under the operation of free competition between publishers the author and the public would be alike benefited — the first by an extended circulation of his works, and the second by a reduction in their cost.” A “ royalty system ” as between an author and his publisher is a very common and convenient arrangement ; but the royalty system proposed above is a different matter. It is one which binds authors hand and foot, and reduces enterprise to one dead level; it places all authors, big and little, celebrated and unknown, on the same footing ; and instead of “ leaving pub- lishers to their own devices ” and their profits to be “ regulated and controlled by the ordinary laws of trade,” it leaves them without a motive to compete for the works of good authors ; it expects them under all circumstances to comply with one general rule, to invest their capital in all cases alike in paper, print, and author’s royalty, quite irrespective of profit or loss to themselves on the venture. To this risk is to be added the additional one, that should their venture be successful their first efforts and outlay are to be paralysed by being immediately reprinted upon by their neighbours. If the book should prove a failure, the first publisher will have the honour and glory and loss all to himself. Not till his venture has given unmis- takable signs of success will parasites Nos. 1 and 2, and so on, interfere with him. So naturalists observe, a flea Has smaller fleas that on him prey; And these have smaller still to bite ’em. And so proceed ad infinitum.^' — Swift. This indeed is “ monopoly ” in disguise — monopoly on the part of the great unconscious public, which would thus com- mence its attack upon “ the ordinary laws of trade ” by which publishers are at present governed. When the Legislature is able to regulate the supply of coals to the starving, bread to the hungry, and clothing to the naked, then it may think about controlling the supply of food for the mind. The celebrated cheque of £20,000 which Messrs. Longman once paid to Lord Macaulay is a favourite illustration of the 38 COPYKIGHT. theorists as to the way in which an innocent public is pillaged by monopolising publishers and authors. This being an event occurring perhaps once in a century is quoted as though it were a good instance of a common occurrence ; and again, ‘ Macaulay’s Life ’ * is usually brought forward as an illustration of the dearness which monopoly creates, compared with the cheapness which would exist if publishers were compelled by law to convert their respectable quarters into bear gardens for their own destruction, and the amusement and instruction of the hungry British public. One cannot but admire the zeal, the energy, and the very great ability which Sir T. H. Farrer has brought to bear upon his hobby. His array of facts and statistics is overwhelming, and his theory most ingenious. It must also be admitted that the Essay appended by Sir Louis Mallet to the Commissioners’ Keport shows a masterly grasp of the subject ; but most assuredly there must be this fallacy underlying and making unstable their whole structure, viz., forgetfulness of the fact that all authors are not Macaulays, and that many a good book worthy of a better fate has never paid its expenses. The only conclusion one can come to with reference to the theory which would by law compel publishers to adopt the royalty system^ or not publish at all, would be that the same law should at least protect them from loss by competition on any venture, but this would be a reductio ad absurdum. If you take a book and print it, the risk is yours — “Guvment ain’t to answer for it, But will send the bill to you.” On the other hand, publishers are perfectly willing to take reasonable risks on the chance of making reasonable profits ; and but for their enterprise it may safely be averred that * A notable instance to the contrary may be mentioned in Lord Beacons- field's Novels. Some years ago these were published in the cheapest possible form at one shilling each, but the public did not care about them. After helping to ruin their publisher, they died out, whereas the handsome edition which Messrs. Longmans are now publishing at 6.s. a volume is an immense success ! This is only another proof that publishers may be safely trusted to supply public wants. THE ROYALTY SYSTEM. 39 thousands of good books, which have interested, instructed, and amused the public, might never have seen the light. There is no existing law to prevent authors adopting this royalty system — why have they never tried it ? ! ! The hiternational Series, which is the direct result of the present system of so-called “ monopoly,” is quoted by Sir T. H. Farrer and Sir Louis Mallet as a marvellous instance of what publishers could do ‘‘ an’ they would ” to meet the wants of the public, and as an example also of what they would be compelled to do if the royalty system were in vogue. Nothing can be more disingenuous than the way in which the argument is used, both by Sir T. H. Farrer and Sir Louis Mallet, in opposition to those who object to the royalty system. Sir T. H. Farrer says with reference to this series ; — “ The price is moderate, and the remuneration to authors, viz., 20 per cent, of the retail price, is said to be liberal, as compared with the ordinary custom of the trade, and these books are pub- lished from the same stereotype plates both in England and America. Some of them, I presume, have copyrights in America, being written by American authors, most of them by European authors have not. None of these books ever come back from America to this country, at least, I believe not, and what is the reason ? Not simply the law which prevents them, but the fact that they actually cost more in America than they do in England.” The inference drawn by Sir T. H. Farrer is that cheapness of price is sufficient, without any law to keep out foreign reprints. Now there is absolutely nothing in the International Series, excepting the fact that it is international, to distinguish it from scores of other series produced by English publishers at equally low or even lower prices for which authors are equally well paid. The difference betwixt this series and others, is that it enjoys, by an ingenious operation of the publishers, copyright in both countries 1 For there is little doubt, notwithstanding Sir T. H. Farrer’s inference to the contrary, that European authors do get for these particular books a protective copyright in America, by the device of getting an American author to write some insignificant, but mysterious portion of the work. If this is so, then the very fact that these books have the entire 40 COPYRIGHT. run of Great Britain and KmeTiQdi, protected by law, is not merely a reason why the price should be low, and authors’ profits high, but also an admirable argument for the desirability of a straight- forward international copyright law between the two countries, but is no support whatever of the argument used by Sir Louis Mallet that — “ It is difficult to admit that a publisher who can afford to give 20 per cent, to an author without fear of being undersold by a rival publisher, who is not obliged to pay anything, could be deterred from this undertaking by a system which compelled his rival equally to pay 20 per cent, to the author.” In this case it appears 20 per cent, goes to the author from both European and American publishers because they have no rivals. It may be difficult for Sir Louis Mallet to admit this ; but it presents no difficulty to a publisher. When a publisher pro- jects an important series of books, he gives hours of his best time, all his long-bought experience, and hundreds of pounds for advertising, before the first volume is issued. When this is done under “ the royalty system ” a rival is to step in and appropriate the benefit. If, however, this International Series, of which such a strong point has been made, had been unprotected by copyright on either side, or had it been subject to the rivalry of all other publishers und^r the royalty system, it is a fair question to ask ^ir T. H. Farrer and Sir Louis Mallet : Would Messrs. Henry S. King & Co. ever have dreamt of producing such a series at all? Here is another notable instance. The late Mr. Weale expended over £100,000 in the production of the admirable cheap scientific series known as Weale' s Series. Would he have expended a penny of it under the royalty system — knowing that I and a dozen other publishers might have pounced upon the best of the volumes at once ? After all, it is difficult to understand why so much should be said about “ the wants of the public ” ! “ Why,” as Dr. Chalmers once said, “ the public’s nothing better than a great baby ! ” It does not create literary wants. These wants are created for it— first by authors, then by publishers, who now AUTHORS A^D PUBLISHERS. 41 wholesomely compete (and the competition is keen enough) to give all kinds of provender at all kinds of prices, but who, under the unjust royalty system, would be subjected to a miserable hole-and-corner warfare, and the most unwholesome kind of underhand competition, such as no self-respecting publisher — no free-born Englishman — could submit to. Fortunately the Commissioners “ are unable to recommend for adoption this change in the existing law.” As, however, the Commission itself, if it was not originated from the repre- sentations of the Board of Trade, was promoted by it, and as that body holds that the royalty system is the true one for the future, and Sir Louis Mallet indorses this opinion, there can be little doubt that the Bill, when introduced to Parliament, will find itself clogged and delayed by an amendment on this subject. AUTE0B8 AND PUBLISHERS. This is a subject difficult for a 'publisher to approach or to treat without, perhaps u'uoonscious, partiality. Authors may be said to have mvented publishers ; but there ivas a time ivhen authors and boohs and readers ivere so comparatively few that publishers were not indispensable. Dryden’s ‘ Virgil ’ was published by subscrip- tion, and Pope made a large sum by dealing direct with the public, and getting the subscriptions in full through iiie unremitting exertions of his friends; but even he could not do without the intervention of a publisher. Dr. Johnson saiv, as Charles Knight remarks, “ that the time for that mode of seeking the just rewards of authorship was passing awayP “ He that asks subscriptions,’^ says Johnson, ‘ffinds that he has enemies’’ “ Thus the system came to be regarded as undignified, and the author left the trading part of the operation to the publisher. Though the rewards of literary labour might be less, it was deemed better to take the broad road, which saved a writer from humiliation and commercial liability.” In these latter days when publishers have become a considerable power in the land, a Society of Authors” has been incorporated, and one cannot help feeling amazed at the bitter feeling it dis- 42 COPYRIGHT. 'plays towards all publishers. One of its first and main objects seems to be to guide, investigate, and be a chech upon the operations of publishers, and at some future time to dispense with them alto- gether, ‘‘ undignified ” as the result may he. The old author - publisher, whose name I have just mentioned, says that some clever writers represent publishers as born to realise the converse of Pharaoh'' s dream, that the fat hine should devour the lean Tcine,'' which is just what the “ Society of Authors ” says of them to- day, “ If authors and publishers understood their mutual interests there would be little distinction between the lean hine and the fat, and they would equally flourish on the same pastures.'' In fairness to “ The Society of Authors," it must be said that in co-operation with “ The Copyright Association " {which embraces many leading publishers), it has done excellent service in bringing about The International and Colonial Copyright Act, June 25, 1886,” which will be found in the Appendix; whilst in directing its efforts to the accomplishment of the long hoped-for copyright with America it will be most usefully and worthily employed.* There are also, doubtless, many ways in which it may and will make itself useful to authors, but it is difficult to see that one of those ways is to make as its leading object a direct attack upon publishers as a class ; one would rather have thought that the interests of both were so much mixed up and so identical, that a wiser object would have been to cement and encourage a feeling of brotherhood and goodwill. If there was a time when, as Lord Camden puts it, great men “ wrote not for gain, but to delight and instruct the world," it is to be feared that such a time is not the present, and such men are uncommonly scarce nowadays. What a fine time it ivould be for publishers if all authors treated gain with the fine scorn which led Goldsmith to say that “ The author who draws his quill merely to take a purse, no more deserves success than he who draws a pistol." a matter of fact, authors in these times, although they write for fame, do not, nor is there any reason why they should, scorn the commercial aspect of their productions ; those amongst them who have once gained the ear of the public, very properly make the best possible bargain for themselves with * The .Bill to consolidate and amend the Law relating to Copyright,*' now before Parliament, is also largely due to its efforts (see Appendix). I AUTHORS AND PUBLISHERS. 43 those who present their works to the 'puhlic, Horace (less mag- nanimous than Goldsmith) made it a matter of comjplaint that his publishers got gold while he got only fame. The word “ author is an uncommonly comprehensive one, for it embraces members of all classes of the community, from the most scurrilous scribbler to the prof oundest philosopher — from the maker of a nations ballads to the balladmonger of the street — a rather heterogeneous mass for a Society of Authors'^ to take under its wing, and one can hardly think that with such material to deal with the Association can really, with any effect, place itself between authors and publishers, draw up schemes, and dictate terms and methods of publication which publishers must necessarily accept. One cannot help feeling that such an attitude bears on the front of it its own futility. At best it could only be an elaborate system of machinery, kept constantly going to provide for rare and isolated cases — a big wheel always kept revolving for the sole object of crushing an occasional moth. Authors may be divided into two classes — the successful and the unsuccessful, and it may not be too bold a thing to say that they are capable of another division — the honest and the dishonest. ‘‘ The Society of Authors ” has been lavish in its expenditure of wrath on the dishonesty of publishers as a class ; but what pub- lisher has not abundant experience of authors who draw money on false pretences for work never executed, and never intended to be executed ? Successful authors certainly do not stand in need of a “ Society of Authors ” to help them ; wholesome competition amongst publishers, whenever they choose to put themselves up for competi- tion, will always enable them to command their own terms. Young or unsuccessful authors may ivell seek advice from such an Institution, and here the “ Society of Authors ” might confer a distinct benefit, by carrying out what was foreshadowed at the last conference, — by reading and advising on authors' manuscripts ; and if it could really ‘‘ stimulate and develop a taste for buying books," it would certainly be doing good service. ‘‘ Plus on lit, plus on lira, plus il faut, plus il faudra, des livres," said an old French bookseller. A Society that could bring really powerful infiuence to bear in the discouragement of commonplace and mediocre authorship, and in the encouragement of the purchase of good ivholesome literature, would really be invaluable, and one can 44 COPYRIGHT. only hope that this “ Society of Authors ” unit gradually develop into an organisation for extinguishing had and fostering good literature'' If in pursuit of this aim it should in the distant or immediate future, hy force of Superior virtue^ succeed in extinguish- ing publishers too, so he it. In that event the Society of Authors " uill necessarily become one great central publishing concern, with arms, wings, and legs spread all over the community, but with working ramifications that can hardly be conducted without ex- penses, which somehow or other must be paid before net proceeds get into the authors' pockets ; and possibly the wrongs to which they are now exfjosed by dishonest publishers may develop themselves in some other form. The supposed antagonism of authors and publishers is as old as the days of Bryden and Pope, the Tonsons, Lintots, and Curlls ; but this antagonism has alivays been more imaginary than real. On the whole, it is really astonishing, considering the magnitude of the operations of book-publishing, how rarely disputes of a serious nature occur between authors and publishers. The various methods of publishing have recently been subjected to the severe criticism of the Society of Authors and yet they do not and cannot suggest any methods that coidd be more readily adaptable to all needs — and for the simple reason, that every book that is published must be subject, not to the dictation of one party, but to the agreement of two parties. All that is required is a clear and distinct written agreement between the parties, intelligible by both, and then the matter rests ‘‘ on a footing of equity." The present modes of publishing have existed in almost unaltered forms from the earliest times, that of sharing profits being perhaps the most customary in the past; and although it has become a fashion lately to disparage and abuse that system, it is unquestion- ably, and in its very essence, the fairest and most reasonable mode of publishing of any, if the system of strict equity which includes the sharing of profits and losses be excepted. Of course the pro- portion of share, whether a half or a third or a fourth, which author or publisher is to take, is a matter to be settled beforehand. The reason of its unpopularity is the most unfounded and unwar- rantable charge which has found expression in the mouths of the orators of the “ Society of Authors," that publishers {as a business principle!) conceal from their authors ayid pocket a large percent- AUTHORS AND PUBLISHERS. 45 age ofiorojit, amounting sometimes to 25 per ceyit. or 30 per cent, over and above what they exhibit in the account rendered to the author. This is certainly a most unjust charge to cast upon publishers generally, and if it is founded upon some special account which has come under the notice of the Association, their charge should have been aimed at the individual, and not at the whole body of publishers. Here is an example of an account rendered more than a hundred years ago, and it is really a counterpart of such accounts for sharing profits as rendered to-day : — State of the account of Mr. Oibbon^s ‘ Roman Empire.'^ Third edition. 1st vol. No. 1000. April 30, 1777. Printing 90 sheets at £1 6s. with notes at the bottom of £ s. d. the page .... 117 0 0 180 reams of paper at 19s. 171 0 0 Paid the corrector, extra care . 5 5 0 Advertisements and incidental expenses 16 15 0 £310 0 0 £ s. d. 1000 books 16s.* . 800 0 0 Deduct as above . 310 0 0 Profit on this edition when sold . £490 0 0 £ s. d. Mr. Oibbon^s two-thirds is 326 13 4 Messrs. Strahan & CadelVs . 163 6 8 £490 0 0 The writer of the ‘ Beeline and Fall of the Roman Empire ’ was perfectly satisfied with his publishers, nor, as it turned out, ivere the publishers dissatisfied with their venture ; but that it was a venture Gibbon himself acknowledged, his own opinion being that “ the original impression should have been stinted to five hundred, but the prophetic taste of Mr. Strahan ruled for 1000.” * This was probably a subscription book, in which case the publisher has dealt direct with the public without making any allowance to the trade. 46 COPYRIGHT. Now let us see how matters would have stood if, of the 1000 copies printed, only 500 had teen sold. Cost of printing 1000 copies 500 looks at 16s. Deduct as above 400 0 0 310 0 0 £ s. d. 310 0 0 Profit on this edition £90 0 0 Mr. onion's two-thirds Messrs. Strahan & CadelVs £ s. d. 60 0 0 30 0 0 £90 0 0 It may have happened, and frequently does happen, that of 1000 copies of a worh printed, not 200 are sold ; in which case it will easily he seen that a heavy pecuniary loss falls upon the publisher. Thus, if only 200 copies had been sold at 16s., only £160 would have been realised by the publisher, out of an outlay of £310, leaving him a loser of £150 by the venture. Then it is that the indignant author, unwilling to acknowledge his own failure, begins to think evil of his publisher, accuses him of want of push, and insinuates that after all he has protected himself by some secret profit, and will scarcely believe him when his accounts are all laid open for his inspection. The table on p. 47 may be taken as the model of an account for sharing profits as we should render it now, for a book published at 14s. : — This shows a statement of affairs which I believe to be abso- lutely correct; if any author wishes to examine all the details, he can see every one of them, even to every line of which the advertisements are made up ; but to furnish every item in detail of the hundreds of accounts one has to render would only tend to befog the author and be, in fact, an impossible and useless labour. There are other methods of publishing which circumstances might render of service, but which cannot possibly be controlled by any “ Society ” that is not in itself capitalist as well as adviser. The most simple plan is unquestionably the purchase of copyright, by which method all difficulties are finally settled. o o 00 o 05 CO 0 0 0^0000 00 t- CO IQ 00(Mt^t-000 8 § s'” is I®.: i-si * r< O* S .883' s CS cc S’i'-i.s-" is IS o I .l.S &.g4 '^1- fe.fe,,S.S8&|® ^^OESI-^ S