Part 1 (1/2)

International Copyright.

by George Haven Putnam.

[1] A paper read January 29th, 1878, before the New York Free-Trade Club.

The questions relating to copyright belong naturally to the sphere of political economy. They have to do with the laws governing production, and with the principles regulating supply and demand; and they are directly dependent upon a due determining of the proper functions of legislation, and of the relations which legislation, having for its end the welfare of the community as a whole, ought to bear towards production and trade.

As students of economic science, we recognize the fact that, in all its phases, it is in reality based upon two or three very simple propositions, such as:

Two plus two make four.

Two from one you can't.

That which a man has created by his own labor is his own, to do what he will with, subject only to his proportionate contribution to the cost of carrying on the organization of the community under the protection of which his labor has been accomplished, and to the single limitation that the results of his labor shall not be used to the detriment of his fellow-men.

It is not in the power of legislators to make or to modify the laws of trade; it is their business to act in accordance with these laws.

Economic science is, then, but the systematizing, on the basis of a few generally accepted principles, of the relations of men as regards their labor and the results of their labor, namely, their property.

There is therefore an essential connection between the systems governing all these relations, however varied they may be. Soundness of thought in regard to one group of them leads to soundness of thought about the others.

Interested as we are in the work of bringing the community to a sound and logical standard of economic faith and practice, it is important for us to recognize and to emphasize the essential relations connecting as well the different _scientific_ positions as the various sets of _fallacious_ a.s.sumptions. Further, we can hardly lay too much stress upon the oft-repeated dictum that a system may be correct in theory yet pernicious in practice, maintaining, as we do, that where the application of a theory brings failure the result is due either to the unsoundness of the theory or to some blundering in its application.

We claim, also, that with reference to the rights of labor, property, and capital, the free-trader is the true protectionist. It is the free-trader who demands for the laborer the fullest, freest use of the results of his labor, and for the capitalist the widest scope in the employment of his capital; and it is he who a.s.serts that the paternal authority which restricts the workingman in the free exchange of the products of his craft, which limits the directions and the methods for the use of capital, appropriates--or, to speak more strictly, destroys--a portion of the value of the labor and the capital, and prevents the owners.h.i.+p from being real or complete.

Authors are laborers, and their works are, as fully as is the case with any other cla.s.s of laborers, the results of their own productive faculties and energies.

Literary laborers lay claim, therefore, to the same protection for a full and free enjoyment of the results of their labors as is demanded by those who work with their hands and who are in the strict sense of the term manufacturers. Such enjoyment would include the right to sell their productions in the open market where they pleased and how they pleased, and if this right to a free exchange is restricted within political boundaries, is hampered by artificial obstacles, the author is not the full owner of his material; a portion of its value has been taken away from him. In so far as international copyrights have not been established, this is the position of the author of to-day.

Copyright is defined by Drone in his ”Law of Copyright,” as ”the exclusive right of the owner to multiply and to dispose of copies of an intellectual production.” It is also used as a synonym for literary property. Regarding literary property, Drone says:

”There can be no property in a production of the mind unless it is expressed in a definite form of words. But the property is not in the words alone; it is in the intellectual creation, which language is merely a means of expressing and communicating.”

Copyright may therefore be said to be the legal recognition of brain-work as property.

It is akin in its nature to patent-right, which is also but the legal recognition of the existence of property in an idea, or a group of ideas, or the form of expression of an idea.

International _patent_-rights have been recognized and carried into effect much more generally than have copyrights. The patentee of an improved toothpick would be able to secure to-day a wider recognition of his right as a creator than is accorded to the author of ”Uncle Tom's Cabin” or of ”Adam Bede.”

”The existence of literary property,” says Drone, ”is traced back by record to 1558, when an entry of copies appears in the register of the Company of Stationers of London.” Between 1558 and 1710 there was no legislation creating this property or confining owners.h.i.+p, nor any abridging its perpetuity or restricting its enjoyment. It was understood, therefore, to owe its existence to common law, and this conclusion, arrived at by the weightiest authorities, remained practically unquestioned until 1774. During this earlier period there were some instances of the recognition of literary property, but the earliest reported case concerning such property occurred in 1666, in which the House of Lords unanimously agreed that ”a copyright was a thing acknowledged at common law.” A licensing act, pa.s.sed in Parliament in 1674, and expiring in 1679, prohibited, under pain of forfeiture, the printing of any work without the consent of the owner.

But the first act attempting to fully define and protect copyright in Great Britain was that of 1710, known as the 8th of Anne. It was ent.i.tled ”An Act for the Encouragement of Learning,” and, declaring that an author should have the sole right of publis.h.i.+ng his book, prescribed penalties against any who should infringe that right. Its evident intention was to more clearly establish, and make more easily defensible, the rights of authors, but curiously enough it had for its effect a very material limitation of those rights.

It provided, namely, that copyright should be secured to the author or his a.s.signs for fourteen years, with a privilege of renewal to the author or his representatives for fourteen years longer. This privilege of renewal was not conveyed to any one who might have purchased the author's copyright. It was supposed for a long time that this statute had not interfered with any rights that authors might possess at common law, and in the oft-cited case of Millar _vs._ Taylor in 1769, in regard to a reprint of Thomson's ”Seasons,” a majority of the judges of the King's Bench (including among them Lord Mansfield) gave it as their opinion that the act was _not_ intended to destroy, and had not destroyed, copyright at common law, but had simply protected it more efficiently during the periods specified. The opinion delivered by Lord Mansfield, as chief justice of the court, remains one of the strongest and most conclusive statements of the property-rights of authors, and has been termed one of the grandest judgments in English judicial literature. Its conclusion is as follows:

”Upon the whole, I conclude that upon every principle of reason, natural justice, morality, and common law; upon the evidence of the long received opinion of this property appearing in ancient proceedings and in law cases; upon the clear sense of the legislature, and the opinions of the greatest lawyers of their time since that statute--the right (that is in perpetuity) of an author to the copy of his work appears to be well founded, ...

and I hope the learned and industrious will be permitted from henceforth not only to reap the same, but the full profits of their ingenious labors, without interruptions, to the honor and advantage of themselves and their families.”

In 1774, in the case of Donaldson _vs._ Beckett, the House of Lords decided on an appeal, first, that authors had possessed at common law the right of copyright in perpetuity, but, secondly, that this right at common law had been taken away by the statute of Anne, and a term of years subst.i.tuted for perpetuity.

Chief among those who, in opposition to this decision, advised the lords that literary property was not less inviolable than any species of property known to the law of England, was Sir William Blackstone.