13 JANUARY 1866, Page 14



New York, December 29, 1865. Ist the Spectator's notice of the dispute which exists between two London publishers (Messrs. Sampson Low and Mr. Trubner), as to which of them has the exclusive right of selling Mr. Grant White's book on the Life and Genius of Shakespeare, that gentle- man is counselled to take this opportunity of "lecturing Congress into decency" upon the subject of international copyright. Now although the Spectator has spoken of him as an active politician, to the surprise, I'll warrant, of all his friends and acquaintance, I am sure that Mr. Grant White will pardon me for saying that shoald he act upon the advice thus given him, and proceed to lecture Congress upon a matter in which he seems to be interested, the members of that august body would ask in no affected igno- rance who it was who undertook to be their Mentor. For it must be confessed that even in this country the question, Who speaks?" is asked oftener and with more interest than, " What is said?" I should not have noticed this matter, or at this time the important question with which it is connected, were it not that the very same number of the Spectator discusses in a spirit of candour the recent decision of the Lords Justices of Appeal in Chancery, that an alien friend residing within British dominions at the time of the publication of a book is entitled to the benefit of the British law of copyright, and if during the present week an important decision had not been made upon the same subject by a Judge -of the Supreme Court of the United States sitting in circuit in New York. The case was as follows : —Mr. Houghton, of the Riverside Press, at Cambridge, who for some years has stood at the head of our printers, made a complete and very beautiful edition of Mr. Dickens's works, the stereotype plates of which he owned. Of this edition before it was finished (if an edition of Mr. Dickens's works can be spoken of as finished, while his imagination continues vivid and his hand has not lost its cunning) three firms in New York appeared successively as pub- lishers, by virtue of course of specific agreements with Mr. Houghton. The last publishers, as their agreement was about expiring, and as Mr. Houghton was about transferring the publi- cation to a new firm of which he is a member, set up a claim for an interest in the edition as partnership owners in a certain good- will which, as they asserted, pertained to this edition, and which they valued at 30,000 dollars. This claim Mr. Houghton refused to recognize, and hence the suit. The case was argued for the plaintiffs by Mr. George Ticknor Curtis, the historian of the for- mation of the Constitution, and for the defendants by Mr. Evart, one of our most distinguished lawyers. The good-will in which the plaintiffs claimed an interest was based upon a custom which cer- tainly does exist here among publishers of works not subject to copyright, or in other words, of the works of British authors. By that custom, or as it is called, that courtesy, of the trade, the first publisher of such a work is regarded as the proprietor of the book in this country, and other publishers respect the right of the literary squatter. It may well be asked how such a right can be enforced. It cannot be made inviolate. But some publishers have managed to protect it very well by letting it be understood in the trade that if any firm publishes a book of which they have thus obtained squatter sovereignty, they, the aggrieved party, will immediately issue editions of two books upon which the offend- ing party have previously squatted, and sell them at so low a price as to destroy their value as merchandise. The offence has been com- mitted and the remedy applied more than once of late. A con- spicuous example occurred last year. Messrs. Ticknor and Fields, of Boston, as may be known to men of letters and to the trade in Great Britain, have been in the habit of paying to British authors copyright money which could not be claimed by law, and the authors in question have assigned to this firm their rights in this country (as far as rights can be assigned which have no legal existence) by expressing a wish that the publication of their books here should remain with Messrs. Ticknor and Fields. This hon- ourable arrangement, the best that could be made in the absence of an international copyright law, has, I am happy to say, been generally respected. But last year Mr. Tennyson's Enoch Arden

was "published upon" Messrs. Ticknor and Fields (that is the trade phrase) by another firm. As from the beginning of Mr.

Tennyson's career Messrs. Ticknor and Fields have been the pub- lishers here of his works in " author's editions," as they are called, and his request that they should be his sole publishers here has been published in their editions of his works, all the world cried shame. The aggrieved publishers could not in this case protect themselves by reprisals, but they retorted by reducing the price of their editions of Tennyson so low that the aggressors were obliged to reduce the price of theirs to a point which seemed ruinous. They, too, replied by a similar counter-check, and this game of beggar-my-neighbour went on until a copy of Enoch Arden, prettily illustrated, fairly printed, and bound in muslin, could actually be bought here at any shop for 25 cents in paper currency, about 9d. ster- ling. The conflict still rages, and this discreditable affair shows what a good-will in the unprotected works of a British author is really worth here, even when it has the shield of his publicly expressed desire as to who should be his publishers. Mr. Justice Shipman, the Supreme Court Circuit Judge in the case of Mr. Dickens's works above mentioned, did not notice this case in point, but setting aside all questions of partnership and other claims as not pertinent to the question before him, he decided that the good-will in an author's works unprotected by copyright and dependent upon mere courtesy of trade, was something which could not be made the subject of a suit at law, and had in fact no legal existence. This decision is of importance, not as establishing a new principle, but because it refuses recognition to one which was attempted to be set up ; and thus our publishers of the works of British authors are left to the uncovenanted courtesies of squatter sovereignty.

It cannot be denied, nor do I wish to deny, that in this matter of copyright we are in an unenviable position before the world. As to the point so much insisted upon by the advocates of an international copyright law here, that the lack of it is unfavour- able to the growth of what is called an " American literature," that is in my judgment of the very least importance. When men possessing all their senses speak no longer of German litera- ture, but of Austrian literature and Prussian literature, and deem it desirable that German literature should be divided according to the political lines which separate the German people, then we may reasonably begin to concern ourselves about an American as dis- tinguished from British literature. The question, as far as we are concerned, is one of right ; and advantageous as it undeniably is to the people of this country that they should have the instruc- tion and the enjoyment to be derived from the works of the best British authors, at a very much cheaper rate than that at which they could obtain it if there were an international copyright law, it seems that the moral effect produced by the consciousness that they are using the fruit of other men's labour without paying them for it, while they continue so to use it, must work a moral degradation not at all to be counterbalanced by the corresponding advantage to brain and pocket. But while I am happy to assure you that I am very far from being singular in this conviction, and that a large proportion of our thinking people earnestly desire that we should deal honestly with British authors in this matter, I cannot hold out any hope of a speedy action by Congress which will secure the rights of those authors in their works in this country.

There are two reasons for the wrongful attitude of the people of the United States towards British authors. The first is the to me strange and altogether unwarrantable assumption, by your legal authorities as well as by ours, that copyright is a privilege conferred upon authors, and that copyright laws are for their bene- fit. How this notion grew out of the past, because copyright laws had for their object the righting of the wrongs which authors suffered at the hands of piratical publishers, it is easy to discover. But it rests either upon a denial of the right which is the founda- tion of all property,—the right of a man to the possession of the product of his own labour, or the assertion that in this respect the product of literary labour differs from that of all other labour. But if labour and production give the right of abso- lute property in anything, in what can it be reasonably as- serted that such a right should be more respected than in the fruit of thought and study, that which a man produces from his own brain, for which he furnishes both material and labour ? If a man grows a sack of corn or makes a wheelbarrow, it is his without law in all countries, to do what he pleases with it. He may sell it, or if he cannot sell it for such a price or to such a person as he likes, he may keep or destroy it, or he may sell it subject to certain conditions. A man writes a book. Surely if anything is absolutely his, that is, for he not

only made it, but it is part of himself. And at first it is not only of right, but in fact absolutely his. He can keep it hidden from all other eyes but his own, he can destroy it, he can sell it abso- lutely; and it is difficult to see why, in a community governed by laws based upon right reason, and capable of apprehending the idea of property in thought, he should not be able to sell it upon certain conditions—why his abstract right (so to speak) to be- queath it, or the right of so selling it, to his grandson and his descendants for ever should not be recognized, as well, for instance, as his right so to dispose of a ship that he has built or a piece of land that he has reclaimed. For various reasons which in a letter like this cannot be enumerated such perpetuity in literary pro- perty would not be for the general good, but this does not touch the question of original inherent right of property. Copyright laws, then, considered in this light, do not grant privilege to authors, do not give them a right in the use of the products of their labour ; but on the contrary, they limit what may be called the natural rights of authors for the benefit of the Commonwealth. An author has a book in manuscript, He may say, "I will put this book into the fire, or I will allow it to be printed, on condition that whoever buys a copy of my represen- tative, the publisher, shall pay so much to my heirs for ever." The law says, "No, not for ever ; but for a certain number of years." In fact the law assumes that it confers a right, but in reason does it not limit a right? This assumption of the law is at the bottom of all our trouble here_ about international copy- right. For if statutes of copyright confer privileges upon authors, and graciously, " for the encouragement of learning," give them rights to which by common law or the law of right reason they would have no claim, why should the legislature of our country confer this privilege upon the citizens of another country to the detriment of its own? If copyright is a fictitious thing, the mere creation of an Act of Parliament or of Congress, the motive of which is the diffusion of learning and literary culture in Great Britain and the United States respectively, why should the legislature of either country confer this privilege, bestow this fictitious thing upon aliens at the expense of its own citizens? And this question brings us to the second difficulty in the way of the passage of an international copyright law by Congress. Such a law no one denies would benefit both British and " American " authors, but by greatly increasing, the price of books written by British authors and published here it would lay a " tax upon knowledge," as the phrase is, for the benefit of a few aliens, or by giving us cheap books printed in London it would ruin our book printers, and shut up half our paper mills and all our binderies. My readers will not suspect me of flattery when I say that you can write books as well in England as we can in the United States, and if you will you can print them so much cheaper as to pay duties and undersell us at what would be here starvation prices for paper-makers, printers, and binders. Mr. Bohn used to do this before the war and the consequent taxa- tion, and now almost any English publisher can send his books here, pay duties, and sell his book at half the price in Treasury notes which a publisher here must ask for a book published in corresponding style. We need not go as far as London to find such ruinous rivalry. New York publishers can now send manuscript to Montreal, where workmen are paid in coin, and have stereotype plates made and delivered hero by express, and paying for them in Treasury notes, save 50 per cent. on the cost of the same plates made here. It is not so much the bookselling as it is the manu- facturing interest which resists the passage of an international copy- right law ou the one hand, and on the other insists upon a heavyduty for foreign books. The paper-makers, the type-founders, the press-makers, the printers, the binders, these are the enemies of the

British author. Why;they, ask of Congress, should you confer a privilege upon aliens who love us not, and upon a class of aliens who delight in reviling us, when it will work such ruin to the manufacturing interests of our own country? And what is the encouragement of a few native authors, who to live must have a privilege, a monopoly conferred upon them, to the well- being of tens of thousands of intelligent, hard-working mechanics who vote for you? On the theory of copyright at present received, their plea is certainly not altogether unreasonable.