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Stedman and Hutchinson, comps. A Library of American Literature:
An Anthology in Eleven Volumes. 1891.
Vols. IX–XI: Literature of the Republic, Part IV., 1861–1889

International Copyright

By George Haven Putnam (1844–1930)

[Born in London, England, 1844. Died in New York, N. Y., 1930. Literary Property.—Lalor’s Cyclopædia of Political Science, etc. 1884.]

THE EFFORTS in this country in behalf of international copyright have been always more or less hampered by the question being confused with that of a protective tariff. The strongest opposition to a copyright measure has uniformly come from protectionists. Richard Grant White said, in 1868: “The refusal of copyright in the United States to British authors is, in fact, though not always so avowed, a part of the American protective system. With free trade, we shall have a just international copyright.” It would be difficult, however, for protectionists to show logical grounds for their position. American authors are manufacturers who are simply asking, first, that they shall not be undersold in their home market by goods imported from abroad on which no (ownership) duty has been paid, which have been simply “appropriated”; secondly, that the government may facilitate their efforts to secure compensation for such of their own goods as are enjoyed by foreigners. These are claims with which a protectionist who is interested in developing American industry ought certainly to be in sympathy. The contingency that troubles him, however, is the possibility, that, if the English author is given the right to sell his books in this country, the copies sold may be, to a greater or less extent, manufactured in England, and the business of making these copies may be lost to American printers, binders, and papermen. He is much more concerned for the protection of the makers of the material casing of the book than for that of the author who created its essential substance.

It is evidently to the advantage of the consumer, upon whose interest the previously-referred-to Philadelphia resolutions lay so much stress, that the labor of preparing the editions of his books be economized as much as possible. The principal portion of the cost of a first edition of a book is the setting of the type, together with, if the work is illustrated, the designing and engraving of the illustrations. If this first cost of stereotyping and engraving can be divided among several editions, say one for Great Britain, one for the United States, and one for Canada and the other colonies, it is evident that the proportion to be charged to each copy printed is less, and that the selling price per copy can be smaller, than would be the case if this first cost had got to be repeated in full for each market. It is, then, to the advantage of the consumer, that, whatever copyright arrangement be made, nothing shall stand in the way of foreign stereotypes and illustrations being duplicated for use here whenever the foreign edition is in such shape as to render this duplicating an advantage and a saving in cost. The few protectionists who have expressed themselves in favor of an international copyright measure, and some others who have fears as to our publishing interest being able to hold its own against any open competition, insist upon the condition that foreign works to obtain copyright must be wholly remanufactured and republished in this country. We have shown how such a condition would, in the majority of cases, be contrary to the interests of the American consumer, while the British author is naturally opposed to it because, in increasing materially the outlay to be incurred by the American publisher in the production of his edition, it proportionately diminishes the profits, or prospects of profits, from which is calculated the remuneration that can be paid to the author.

The suggestion of permitting the foreign book to be reprinted by all dealers who would contract to pay the author a specified royalty has, at first sight, something specious and plausible about it. It seems to be in harmony with the principles of freedom of trade, in which we are believers. It is, however, directly opposed to those principles. First, it impairs the freedom of contract, preventing the producer from making such arrangements for supplying the public as seem best to him; and secondly, it undertakes, by paternal legislation, to fix the remuneration that shall be given to the producer for his work, and to limit the prices at which this work shall be furnished to the consumer. There is no more equity in the government’s undertaking this limitation of the producer and protection of the consumer in the case of books than there would be in that of bread or beef. Further, such an arrangement would be of benefit to neither the author, the public, nor the publishers, and would, we believe, make of international copyright, and of any copyright, a confusing and futile absurdity. A British author could hardly obtain much satisfaction from an arrangement which, while preventing him from placing his American business in the hands of a publishing house selected by himself, and of whose responsibility he could assure himself, would throw open the use of his property to any dealers who might scramble for it. He could exercise no control over the style, the shape, or the accuracy of his American editions; could have no trustworthy information as to the number of copies the various editions contained; and if he were tenacious as to the collection of the royalties to which he was entitled, he would be able in many cases to enforce his claims only through innumerable lawsuits, and would find the expenses of the collection exceed the receipts. The benefit to the public would be no more apparent. Any gain in the cheapness of the editions produced would be more than offset by their unsatisfactoriness; they would, in the majority of cases, be untrustworthy as to accuracy or completeness, and be hastily and flimsily manufactured. A great many enterprises, also, desirable in themselves, and that would be of service to the public, no publisher could, under such an arrangement, afford to undertake at all, as, if they proved successful, unscrupulous neighbors would, through rival editions, reap the benefit of his judgment and his advertising. In fact, the business of reprinting would fall largely into the hands of irresponsible parties, from whom no copyright could be collected. The arguments against a measure of this kind are, in short, the arguments in favor of international copyright….

It is due to American publishers to explain that, in the absence of an international copyright, there has grown up among them a custom of making payments to foreign authors, which has become, especially during the last twenty-five years, a matter of very considerable importance. Some of the English authors who testified before the British commission stated that the payments from the United States for their books exceeded their receipts in Great Britain. These payments secure, of course, to the American publisher no title of any kind to the books. In some cases they obtain for him the use of advance sheets, by means of which he is able to get his edition printed a week or two in advance of any unauthorized edition that might be prepared. In many cases, however, payments have been made some time after the publication of the works, and when there was no longer even the slight advantage of “advance sheets” to be gained from them. While the authorization of the English author can convey no title or means of defence against the interference of rival editions, the leading publishing houses have, with very inconsiderable exceptions, respected each other’s arrangements with foreign authors, and the editions announced as published “by arrangement with the author,” and on which payments in lieu of copyright have been duly made, have not been, as a rule, interfered with. This understanding among the publishers goes by the name of “the courtesy of the trade.” I think it is safe to say that it is to-day the exception for an English work of any value to be published by any reputable house without a fair, and often a very liberal, recognition being made of the rights (in equity) of the author. In view of the considerable amount of harsh language that has been expended in England upon our American publishing houses, and the opinion prevailing in England that the wrong in reprinting is entirely one-sided, it is in order here to make the claim which can, I believe, be fully substantiated, that, in respect to the recognition of the rights of authors unprotected by law, their record has in fact, during the past twenty-five years, been better than that of their English brethren. English publishers have become fully aroused to the fact that American literary material has value and availability, and each year a larger amount of this material has had the honor of being introduced to the English public. According to the statistics of 1878, 10 per cent. of the works issued in England in that year were American reprints. The acknowledgments, however, of any rights on the part of American authors have been few and far between, and the payments but inconsiderable in amount. The leading English houses would doubtless very much prefer to follow the American practice of paying for their reprinted material, but they have not succeeded in establishing any general understanding similar to our American “courtesy of the trade,” and books that have been paid for by one house are, in a large number of cases, promptly reissued in cheaper rival editions by other houses. It is very evident that, in the face of open and unscrupulous competition, continued or considerable payments to authors are difficult to provide for; and the more credit is due to those firms who have, in the face of this difficulty, kept a good record with their American authors….

We may, I trust, be able, at no very distant period, to look back upon, as exploded fallacies of an antiquated barbarism, the two beliefs, that the material prosperity of a community can be assured by surrounding it with Chinese walls of restriction to prevent it from purchasing in exchange for its own products its neighbor’s goods, and that its moral and mental development can be furthered by the free exercise of the privilege of appropriating its neighbor’s books.