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INTERNATIONAL COPYRIGIT. IT.is time, and more than time, that law throws its protecting ægis about
something were done by our national you, that not only is your body safe legislature, towards securing the claims from injury, but the smallest article of of foreign authors to their works. We value, you have with you, is recoverable have considered the subject in its pros when wrongfully taken or detained. and cons, for many years; the bearings Nay, our merchants will send their of it aro well understood, and the public goods among the wildest inhabitants of mind has attained as great a uniformity Asia, in the South Pacific, secure in the of conviction, in regard to it, as it is feeling that the rude justice of those dis possible to attain in the existing diver- tant regions will shelter their posses sity of human interests and feelings.
sions from invasion and wrong. Many, who were once hostile to any ao Now, what difference, in respect to tion in the premises, now profess to be in the question of ownership, is there befavor of it; no formidable opposition to tween a bale of cloth which a man has the scheme exists anywhere. that we
woven, and a book of history which be are aware of, and the inauguration of a may have written ?
In the one case, new administration is an auspicious ho spends his capital, his time, and his hour for the initiation of a new policy. ingenuity in fabricating a new form of
All times, however, are fitting times cotton or wool, and, in tho other, in fabfor doing justice to our neighbors; and ricating a new form of thought or lanthis question is one, as it has always guage, and, though the labor in the Beemed to us, not of expediency, merely, latter is of an infinitely higher order but of positive right. It is preëmi- than that of the former, the results aro nently a question of justice. Has the the same. Both are produots of skill; maker of a book-by which we mean, of both represent a large amount of value the inward contents, and not of the out- consumed in the production of them; ward form alone-a title to the control of both contribute to the supply of human its publication, and to the profits that wants, and possess exchangeable proaccrue from the sale of it?
Has he a
perties; and, surely, the laws which proprietary interest in it, to the extent guaranty tho inviolability of one, ought of declaring when, and where, and how to guaranty the inviolability of the it shall be used, as the owner of other other. What would be thought of a property has ? If he has, then the laws nation which should refuse to recognize of every civilized country ought to pro- the right of the owner of the bale of claim that right, and protect him in the cloth to his property-which should auenjoyment of it; and, if he has not, then thorize the first chance comer whom he the laws wbich already recognize it, in should meet, on landing on its shores, 80 many forms, as the patent laws and to seize and carry off his goods ? Would domestic copyright, are a gratuity, and it not be reduced to the level of the ought to be repealed.
savage and semi-barbarous nations, with Property, which is rightfully held as which civilized people would hold no property-that is, as what strictly and intercourse, save at the point of the indefeasibly belongs to one man and bayonet or sword ? not to another, and which is no mere We are aware that attempts have concession of a privilege-ought to be been made to distinguish between imrespected by the laws everywhere, material and material productions, but without regard to the domicile of the we do not conceive them to have been claiinant, and subject only to the supe
Mr. Carey, for inrior right of society to direct the manner stance, in his Letters on International of its use, so that it shall not interfere Copyright, argues that the literary with the well-being of men. The greater craftsman really furnishes us with no number of our personal and proprietary new products, but takes old materials rights are so respected by the universal and facts, and simply dresses thom after jurisprudence of Christendom. Travel a new fashion. in any part of the civilized world that
“Examide Mr. Macaulay's History of Eng you please, and you will find that the land," he says, "and you will find that the
body is composed of what is common proper. mon stock that you are indebted for the power ty: Not only have the facts been recorded by to make your book, and we require you, in others, but the ideas, too, are derived from tho your turn, to contribute towards the augmentworks of men wbo have labored for the world ation of the stock that is to be used by your without receiving, and frequently without the successors.' This is justice, and to grant more expectation of receiving, any pecuniary com than this would be injustice." ponsation for their labort. Mr. Macaulay bas
The illustration is an unhappy one, read much and carefully, and he has thus been enabled to acquire great skill ip arranging and because it may be turned against the clothing his facts ; but the readers of his books rightfulness of nearly all property. will find in them do contribution to positive There is no kind of production, material knowledge. The works of men who make or immaterial, which is the creation of troversial and distasteful to the reader; for something absolutely new. Here is a w.bich reason they find fow readers, aud never farmer, for instance, with his bushel of pay their authors. Turn, now, to our own au- wheat, which he brings to you to sell. thors, Prescott and Bancroft, who have fur. nished us with historical works of so great But, paraphrasing Mr. Carey's argument, excellence, and you will find a state of things you turn upon him, and say, " My dear precisely similar. They have taken a large agricultural friend, you are mistaken as stock, in which you, and I, and all of us have to the ownership of that bushel of wheat an interest ; and those materials they have so
The entire substance of it is composed reclothed as to render them attractive to pur of what is common property. You have chasers ; but this is all they bave done. Look read and observed much and carefully, the same. He was a great reader. He studied no doubt, to enable you to work the soil the corstitution carefully, with view to un.
to the best advantage ; you bave worked derstand what were the views of its authors, bard all your life to acquire skill in arand those views be reproduced in a different ranging and forwarding your crops ; you and more attractive clothing, and there his work ended. He never pretended, 26 I think.
have given your time, in sunshine and do furnish the world with any new ideas;
and, rain, for nearly a year, in caring for if he had done so, he could have claimed no your grain, but in what you now preproperty in them.' Fow now read the heavy gent us, we chemical analysts find volames containing the speeches of Fox and Piut. They did nothing but reproduce ideas
no positive contribution to the world's that were common property, in such clothing possessions. It is all carbon, hydrogen, as answered the purposes of the moment. Șir nitrogen, or ammonia, which existed beRobert Peel did the same. The
world would fore, in a free state, in the soil, or tho now be just as wise had he never lived, for he made no contribution to the general stock of
air, or the rain, and belonged to everyknowledge. The great work of Chancellor body or nobody. You have simply roKept is, to use the words of Judge Story, but produced them in a different and more a new combination and arrangement of old
attractive clothing; but the world would materials, in which the skill and judgment of the author, in the selection and exposition and
have had just as much of those materials accurate use of the materials, constitute the if
had never lived. Neverthebasis of his reputation as well as of his copy: less, for the trouble and expense yon right. The world at large is the owner of all the facts that have been collected, and of all
have been at, in doing so, we will allow the ideas that have been deduced from them,
you a small toll, while the mass of the and its right in them is precisely the same that product, we, the people, will reserve to the planter bas in the bale of cotton that has ourselves." We fancy that the farmer been raised on his plantation ; and the course of proceeding of both bas, thus far, been pre
to whom Mr. Carey should address this cisely similar ; whence I am induced to infer kind of communism, would incontinently that, in both cases, right has been done. When catch up his wheat, and make out of the planter hands his cotton to the spinner and his presence. the weaver, he does not say, 'Take this and
It is true, as this argument supposos, convert it into cloth, and keep the clotb;' but he does say, 'Spin and weave this cotton, and
that the writer, whether historian or for so doing you shall have such interest in the novelist, draws from a common stock of oloth ar will give you a fair compensation for learning; he has been built up intel. been paid, the cloth will be mine. This latter lectually by the labors of others;
and is precisely what society, the owner of facts it is only once or twice in the age that and ideas, says to the author : "Take these a man arises of such eminent originality raw materials that have been collected, put and power as to fructify the realm of them together, and clothe them after your own fashion, and for a given time we will agree
thought with a genuine new truth; but that nobody else shall present them in the it is no more true of the writer than it same dress.
During that time you may ex is of the miner, the manufacturer, the bibit them for your own. proft, but at the end merchant, or the mechanic. All alike of that period the clothing will become common property, as the body now is. It is to the
draw the substance of the goods, on contributions of your predecessors to our com- which they operate, from the common had;
bosom of nature or art. They create expects to realize, and ought to realizo, nothing--they merely roproduce the by the sale of his work, not a mere existing mass of materials in new forms. profit on the paper and typography, but But what the right of property attaches a substantial recompense for bis outlay to in these things, and what the world and toils. Is it not proper that he should pays for, is not the material but the be so recompensed? Has bo pot, liko form or the use to which that material the agriculturist or the merchant, contrimay be put. It is not the albumon and buted uses to the world ? His work may gluten that we value in wheat, but the not be a strictly original one; it may wheat itself which has taken that form pot contain a single sentence for which in consequence of the labors of the be does not himself give you an authority busbandman. And so it is not the ex- in some previous writer ; it may be on tracts from Herodotus and Thucydides tirely compiled from documents to which which we value in Grote's Greece, but you may have as free an access as he the book itself, which has given a pecu- and yet it may be a signally valoliar collocation and significance to those able work-for which scholars will conextracts. But if we pay the husband- sent to pay an almost incredible price, man for bis labor, by surrendering to and the public at large evioco an exhim the complete right of control over treme avidity. On what ground, then, his product, why should we not pay of reason or principle, can we deny bis Mr. Grote in the same way? The hus- positive right of property in the results bandman has simply taken the common of his undertaking ? materials of earth and water, and, by his Mr. Goodrich, in his recent work, enskill and industry, converted them into deavors to show, if we uuderstand him nutriment for our bodies, while Mr. aright, what the late Mr. Clay was ao Grote has taken the common materials cused of saying, that “that is proof Grecian literature and converted them perty only which the law makes prointo nutriment for our minds.
perty;" and yet his reasoning is so In essence, then, the two methods confused that we are not sure of stat of industry are the same, and the only ing him rightly in thus speaking. On difference is in the infinitely higher cost page 361 of volume second, he reof the intellectual labor, and the infi- marks that the right of the author to nitely superior worth and durability of its his works is substantially the same as products. It requires but little previous the right of the farmer' to his corn, training, and but a small expenditure of and that “no ingenuity has been able to means, to fit a man for almost any me- show any distinction whatever between abanical pursuit, while the result of his the principle on which the author's work, for the most part, perishes in the copyright is founded, and that on using. But to the training of the great which the farmer's right to his crop is writer, there goes an immense outlay of founded.” At the same time, for two capital, and long and weary days and or three pages subsequently, he argues, nights of preparatory discipline. The quoting learned authorities, therefore, actual execution of his work supposes that property is merely a possession still other years of research and thought, according to law.” He does not deny, and often his whole life is consumed be- any more than his authorities, that there fore he bas more than begun bis task. may be an abstract natural right of The literary man must be educated, property, but he contends that, in the which takes ten or fifteen years of Kis actual condition of society, this ab life at least, and costs a fortune to his stract natural right has been in some parents or relatives; he must be provided way lost or merged " in the considerawith a library of books, which are the tions of policy," by wbich all nations tools of his profession ; he projects a are practically governed. But if that great work, and exhausts a dozen years principle is to be admitted, if our rights more in preparing for it; in the course of property aro only what the law allows of that preparation be is obliged, per- to be such, what is to save us from abbaps, to visit distant countries, or to solute despotism, or the wildest sanscuinstitute dangerous experiments, or to lottic liberty ? Surely, there must be furnish himself with rare and expensive some limit, in natural right, to the intermanuscripts; and, when he is done, he ferences of “policy!" The instivcts of
• Rooolloctions of a Lifetimo. Now York, 1856.
the child, of the savage, and of civilized Why? The reason of this, in the case man, which proclaim an individual circle of inventors, is a special one, namely, of the rights within which the law itself that the experience of mankind, in rocan step only wrongfully are not wholly gard to inventions, has demonstrated, unfounded. How broad this circle is-at that even the most ingenious contriwhat preciso point natural right ceases vances are as much a product of the and social right begins, it may be diffi- wants of the age as of the creative cult to say, but that there is a marked faculties of any individual man. Fultou distinction between the two, all the bet- is said to have invented the steamboat for writers on law, as well as the upper- but there are a dozen claimants to the verted dictates of the human heart, de- honor besides Fulton. Morse wax, undare. In no sense, it seems to us, can questionably, the inventor of the electric the law be said to constitute or create telegraph, but there were others who property, it merely defines and declares did invent it, or would have invented it it Property may exist where there is if his discovery had not been announoed, no law-wherever buman labor has about the same time. To give to Fulton given a new form or place to that which or Morse, then, a perpetual right to their is adapted to the supply of human claims, would have excluded others, want, there is property; and the equally deserving, from their fights. It function of law, when it intervenes, is is by way of compromise, therefore, only to regulate the methods of its use, that the law limits the right, so that the its transmission, and its tonure.
first inventor shall enjoy the fruits of If it be asked, then, why, granting the bis priority, and yet not prevent the aathor a positive right to bis works, the future enjoyment of others, or stand in laws of all nations presume to limit that the way of future improvements. A right? wo answer that they do 80 on the similar, but more general policy, is same ground, and for the same reasons, adopted in respect to authors. The that they limit the exercise of all other great majority of books, such as schoolrights on the ground of what are con- books, histories, works of science, ceived to be the more important inter- charts, etc., etc., are of a kind which, ests of general society. Rights of prop- if one man did not preparo, another map erty of all kinds are positive, but they could and would—which are susceptible are not absoluto-they are positive, be- of great improvement, in the course of cause they are rights, belonging to one experience, and in other hands, by man, and not to another-and they are potes, comments, emendations, etc., and not absolute, because they may, and which, if surrendered exclusively and often must be, qualified by the superior in perpetuity to the first authors or comrights of others. But this qualification pilers, would create an injurious monoought never to be of an arbitrary kind- poly. The law, consequently, looking thero ought always to be a good reason to the larger interests of society, as well subsisting in the actual needs of society, as to the interests of individuals, and, for any, even the least, interference unable to discriminate between works with the valid claims of the individual. of real originality and those which are Much more ought there to be a good not so, adjusts the difficulty by a limitareason for any interference which pro- tion of the time for which a copyright poses to annihilate the claims of the may be held. It would be better, and individual altogether.
more just, if the law did discriminate, Let us apply these principles to the and confer upon certain publications a matter in hand.
longer hold; but as that could not be Inventors, as we know, are allowed done without the establishment of a to enjoy their patents but for seven censorship or board of judges, which is years, and the writers of books but for objectionable, as open to numerous fourtoen, with a privilege of renewal, in abuses, the existing system must be both cases, under certain circumstances. continued. We are clear, bowever,
* Of course we except the cases of wbat is confessedly artificial property, of which there are many instancos.
t Bosides this objection to the porpetuity of the author's right, there is another, which Nay loon had tho sagacity to suggest in the discussions which took place, of the Civil Code of Franco. " A literary property," he says, " being an incorporeal property, would, in the course of timo, if transmissible to descendants, come to be divided between a multitude of individuals, and would end, in somo sort, by not existing for anybody; for, how could a great number of that, in this country, the term to which of foreign authors ought to be recog. the right of the author is restricted, is nized, that is a question of legislative too short; it extends oniy to twenty- wisdom, to be determined, like every eight years, with a renewal for fourteen other question in which a right is inyears; while, in England, it is for life, volved, by a proper adjustment of the and seven years after death; in most of individual's claims to the good of the the states of Germany, for life, and, in public. If the admission of the right, Franco, for the life of the author and his in one form, would be detrimental to wife, and to their children for twenty the public interests, then it must be seyears afterwards. The provisions in cured in some other form. If a broad this country, it will be seen, are less and open recognition of the claims of liberal, virtually, than those of any of British authors and publishers would the leading nations, although we boast seriously injure our own authurs and of our superior intelligence, and evince publishers, it is clear that some other such honorable pride in the growth and method must be devised to accomplish success of our young literature.
the end. We deal with native writers Conceding the right of the author, in on the principle that their rights of the first instance, is there any national property, though conceded to them
as ground, any reason of state, any prin. valid, are yet held in subordination to oiple of domestic policy, which should the public good, and foreign writers can induce us to refuse that right to the claim no higher justice than what is foreign author as well as our own ? His meted to our own. The essential point rights at home, as our argument shows, is, that substantial justice be done to all are as good as those of the merchant to parties. But is it true, that a satisfaohis bale of goods, or of the mechanic to tory recognition of the rights of foreiga his implements. Why should we not authors would damage our own interacknowledge the one as well as the ests in any way? By a satisfactory other? What is there in a book, to shut recognition, we mean, not precisely such it out from the sympathies of the law, an ample recogoition as we give to the which is not also in the bale of goods or rights of our native authors, but one the tools of trade? Why are authors that sball at least confess and establish made an exception to all producers and the right of the alien authur. Let us supproprietors ? What is there so sacred pose him placed in this category—that in a fabric of silk or a cask of wine, that on the actual publication or getting out all the courts of the country will run to of his work in this country, we grant him its protection, if it is invaded, which is a copyright for the requisite number of not also in Thackeray's novels or Mac- years—what would be the result ? aulay's history? We confess that we There are but three classes who could could never discern the difference. The possibly be affected by the operationprinciple of society, in respect to all American authors, American publishproperty, is, that the owner has a right ers, and the American reading public; to the control of it; the limitation in. and we do not see how either of these posed by society on all property is, that could be very injuriously affected. such control shall be subordinate to its American authors relieved from the own highest interests, or its own welfare disadvantages of an unpaid competition,
- and with what equity, then, do we it is universally allowed, would be great make a particular species of property gainers by the change. They now como an anomaly-extinguishing it wholly, into their own market, against the powand saying that it is po property at all ? erful and active intellect of Greut BritNow, we do this in the instance of ain, unde the singular drawback that foreign authors; we do not limit their their works must be paid for by the claims, or qualify, or regulate them, but publishers, while the works of their we ignore them, refuse to acknowledge rivals are procured for little or nothing. them, by converting their special pos- But no one disputes this position, and sessions into a common of pasturage. we need not argue it. How, then, would
As to the terms on which the rights it be with the publishers—wo refer to
proprietors, often remote from each other, and who, after some generations, would scarcely know each othcr, agree and contribute to the reprinting of the work of their cominon author Yet, if they should not do so, and the right of publishing belonged to them alove, the best booke would insensibly disappear from circulation." -Locrė Legislation Civile de la France, t. 9, a 17.