THE LAWS OF COPYRIGHT.*
Tim present volume on the laws of literary property is the Yorke Prize Essay of the University of Cambridge for 1882„ revised and extended. Mr. Stratton has undoubtedly been well advised in publishing it, for it is an exceptionally good ex- position and criticism. The plan is well conceived and con- sistently carried out ; the statement is clear, concise, accurate,. and fresh. If the professional lawyer do not find in the book an absolutely exhaustive record of statutes and decisions, and dislike the mixture of so much discussion of what ought to bye- law with the exposition of what is actually law, the author and the publisher, on the other hand, will certainly find trustworthy guidance, and the general public an interesting history and an impartial examination of an important question.. Having discussed and answered affirmatively the fundamental question,—Is it desirable in the interests of the community that the State should create and protect property in literary pro- ductions, or the results of intellectual labour P—the author examines in detail the principles on which the law of copyright ought to be based. He allows considerable space to an instruc- tive review of the history of copyright law in England, with a glance at the usage of other countries, and especially of the- United States, where the influence of the English law has been peculiarly marked. He is then in a position to set forth the existing law of England on the subject. At every stage he refers to the recommendations of the Copyright Commission (whose exhaustive report seems to have been lying in cold obstruction-for the last five or six years), as well as to the abor- tive Bills led. to sacrifice in the House of Commons by Mr. Hastings. Three very good chapters on artistic and musical copyright are fresh additions which have been judiciously incor- porated with the original essay. The survey is completed with- chapters on colonial and international copyright. We do not understand that Mr. Scrutton would claim that there is -any- thing particularly new in his book ; but his lucid presentation and vigorous handling of the essential points of the subject- invest his work with a distinct practical merit that deserves. recognition.
The theory of the absolute right of the author, Mr. Scrutton dismisses with scant ceremony. Regarded as a legislative basis, it is obviously untenable, as it wholly overlooks the fact that literary property is the creation of the State, and can exist only on such conditions as public opinion may be prevailed upon to- sanction. The general principles that ought to regulate the term of copyright for any country are, as Mr. Scrutton justly concludes, two,—" that it be at least so long as to induce the production of the best and most permanent class of literary work ; and that it do not expire at such a time as to cause a, popular sense of injustice to the author." But, it may fairly be urged, these principles merely fix the lower limit ; they mark the very highest price that the author's fellow-citizens can exact from him for State protection. They prescribe the very least measure that can be meted out to the author. Of course, the public interest must be guarded, the State protection must be paid for, and the influence of the general spiritual advance of the community must he acknowleged by a proper return. But the interests of the public—even when not identified with the mere likes of the public—alter with the times. Nowadays, for instance, if a volume is too expensive to purchase, one can find it without much trouble at a library, circulating or free. Besides, the' production of other works of the same class constantly tends to keep down the price of any particular writer's works. It is. also open to remark that the teat of the popular sense is not always so perfect as to satisfy the deeper equitable prin- ciples on which the practical legislative principles rest. Nor does the popular sense always find the means of effective expression. Authors and other owners of copyright are not powerful enough to make their views a burning question to sway a general elec- tion. Take the case of Scott's novels,—there is no apparent hardship to individuals, while there is a vast public gain, in the extinction of the copyright. But call to mind. more recent examples of great popular novelists, and are there not one or two regarding whom the same thing cannot honestly be said ? The public are not intentionally unjust, and would not indi- vidually drive a harsh bargain with authors.; but it is only in the most abstract way that they concern themselves—when The Laws of Copyright : an Examination of the Principles which should Regu- late Literary and Artistic Property in England and other Countries. By T. B ficrutt3n, M.A., LL.B, Loudon : John Murray. 1883. they concern themselves at all—about the bread and cheese of the families of authors. Still, no better lower limit seems to be available ; and it is for wise legislators, while guarding carefully the vaguer interests of the public, to fix a higher, more liberal limit, guarding with equal care the very definite interests of the heirs and assigns of the author. In all other countries where recent revision has
been applied to the law, the term of copyright has been in-
variably extended. " Usually the original copyright has been in perpetuity ; and, after being cut down to a short term of pro-
tection, this has been gradually lengthened. This has been the case in England, France, Holland, Norway, Sweden, Denmark, and Spain." On the whole, it seems that the public might reasonably acquiesce in the recommendation of the Commission, which would continue the protection of the author's right for thirty years—say, a generation—after his death. Mr. Scrutton agrees that this system would attain the desired ends at the
least cost to the State, and for that reason ought to be adopted. Mr. Scrutton's detailed examination of the subject indicates clearly the easy possibility and the great advantage of a new copyright law, in which all the different classes of literary pro-
duction should be expressly brought under the general principles that should regulate them. Such general principles are the same for all the classes, the variations being confined to details, and arising from the slight differences in the modes of com- municating the works to the public. The existing legislation, scattered through a score of statutes based on a multiplicity of principles, is so unsatisfactory, that a considerable reward might safely be offered for an unhackneyed expression of censure. The supreme law of the public good forbids undue harassment of our legislators ; but if they would only allow each other to face this crying question of copyright law reform with the most moderate resolution to settle the matter, the statute- book of next session might be the richer by one very useful measure. But there are, unfortunately, some very big lions in the way.
We are reluctant to touch Mr. Scrutton's conclusion of the
whole matter, but we may quote a sentence or two to show the drift of it :—
" The whole of this discussion has tended to show the `commu- nistic' character of the law of copyright. Literary and artistic productions are treated as property, but that property is created in,
and limited by, the interests of the community But let us remember that the position is applicable to all kinds of property. Limit in the interests of the State the iteration of property in books, if you like ; but recognise that the same arguments may be used to limit the duration of property in land, the power of inquest at death, and the devolution of the property of an intestate. And above all, a caution which is most necessary in arguing the matter, and dealing with questions of so-called ' justice," right,' and utility,' let us be careful that we understand what we mean by these terms ; for though such an investigation may be tedious to our lofty intellects, perhaps even fatal to our pet arguments, it will certainly result in greater clearness and brevity, and less idle declamation."
There is much truth in this, no doubt,—though the state- ment of it in a tart, magisterial tone is apt to obscure it in the mind's eye of those who are reluctant to look at it fairly. The points of agreement and difference between property in literary and artistic compositions, and property in broad acres and ground-rents and houses and cattle and current coin of the realm, are too sharp to be meddled with here and now. But the time is plainly fast approaching when it will be necessary to handle them at all hazards.