July 15, 1887.] 



SCIENCE. 



27 



from the Librarian of Congress. If, therefore, Congress cannot find 

 any individual to say that he is a sufferer by the present state of 

 affairs, and cannot find anybody to depose that the country is suf- 

 fering, where is the case to meet which, or the hardship to remove 

 which. Congress can act ? 



As to the constitutional powers of Congress to pass laws result- 

 ing in an admission of Englishmen to full privileges of our laws so 

 far as the protection of literary property is concerned, perhaps a 

 word may be said : though, from the above considerations, it would 

 hardly affect the fact, that, however constitutional the action to be 

 taken. Congress must have some pretext upon which to base their 

 action. 



When the Constitution of the United States was framed, it gave 

 Congress power to pass laws ' to promote the progress of science 

 and the useful arts ' by securing for limited times to authors and 

 inventors the exclusive right to their respective writings and dis- 

 coveries. It is argued, that, — since the words used are, ' to promote 

 science and the useful arts,' — this clause must be construed to mean 

 that the framers were not thinking particularly of the citizens of 

 the Republic, but rather of the sciences and the useful arts, in their 

 anxiety that the new commonwealth should grow in intelligence 

 and intellectual strength. But, since the presumption is always 

 that a State legislates for the benefit of its own citizens first, even 

 before it legislates for the abstract benefit of arts and sciences ; and 

 for the practical worldly prosperity, safety, and peace and tran- 

 quilUty of its citizens, even before conservation of their intellec- 

 tuality, — something more, I suppose, than abstract argument will 

 be required by Congress before it will be satisfied that those pre- 

 sumptions have been disposed of, and the constitutional clause suffi- 

 ciently widened for them to act upon a generality. 



Commercially speaking, questions of copyright as a matter of 

 fact are at present of very minor importance in the jurisprudence 

 of the United States. As a matter of exact calculation, decisions 

 upon questions of literary property do not occupy one sixty-fifth of 

 one per cent of the time of our courts. It is impossible to deny 

 that such a consideration as this may, in its turn, have some effect 

 upon the indisposition of Congress to legislate upon questions of 

 copyright ; though that it can militate in the slightest against the 

 right of every man to his own, of course nobody can pretend for a 

 moment. The real value of the subject, being thus appraised by 

 the despotic laws of trade and of supply and demand, need not be 

 further assessed. But I have no doubt but that the great resources 

 of the English language, and the perfect ease and impunity with 

 which any literar)' work can be pirated by paraphrase, have some- 

 thing to do with this estimate. Eleven years ago I myself prepared 

 a legal treatise on this very subject of copyright, and my publishers 

 issued it in two octavo volumes of some fifteen hundred pages. 

 Since copyright cases rarely appear in the digests, and only occa- 

 sionally in the reports (being mostly settled, if they get into court 

 at all, at special term), I was at the pains of considerable servile 

 labor in collecting my cases at first-hand from counsel and the 

 court records. But no sooner had my book appeared, than a general 

 writer for the press, who, among other lucubrations, had been favor- 

 ing a popular weekly with dissertations to the effect that copyright 

 should not exist and be limited by statute at all, but by common 

 law, and so be perpetual, — and that therefore the law was a robber 

 and a villain, — gathered up these dissertations, and bound them, 

 along with my cases, into a book ; which, as it came later than 

 mine, by the inexorable law-book rule, superseded it. To conceal 

 the plagiarism, this last writer was at great pains to display in his 

 volume a list of the authorities he had consulted, taking in authors 

 a century or so back, but carefully omitting my work of the year 

 before (which he, however, reviewed at great length in a daily news- 

 paper), out of which he had nevertheless obtained all his recent, 

 and the bulk of his valuable, material. Now, here was no apparent 

 nor technical piracy, — nothing against which I could demur, or 

 courts relieve. The example has survived its importance, and (since 

 the last-coming volume is already effete) lawj-'ers have so rarely oc- 

 casion to open it, that I doubt if they have even discovered that its 

 letter-press reads one way, and the cases it cites another. But I 

 recall it here to show how small, at the most, is the real protection 

 an author gets from the act of taking out a copyright ; and how 

 ■easily even technical matter can be pirated with impunity. But 



when it comes to general propositions the protection vanishes alto- 

 gether ; for we can equally well say, ' the sun shines ' or ' the orb of 

 day illuminates,' ' the rain falls 'or 'it rains,' ' gravity controls ' or 

 'the attraction of gravitation governs,' 'the statute provides' or 'it 

 is enacted by the statute,' etc.; and a very Uttle ingenuity indeed 

 will suffice to make a later book entirely entitled to copyright, while 

 actually, consecutively, and unblushingly pirating the entire contents 

 of its most recent predecessor by the simple and artless process of 

 paraphrasing it. Certainly there is no law, rule, or custom of the 

 copyright bureau to prevent ; no oath of originality, novelty, or 

 utility is required, as in the case of application for a patent. Any- 

 body can mail a titlepage and fifty cents to the Librarian of Con- 

 gress, and, on publication of his matter, two printed copies of some- 

 thing whose drift or contents corresponds to that titlepage ; and 

 this, — entirely irrespective of the source, authorship, proprietorship, 

 or character of the matter forwarded, — gives a complete copyright 

 under our statutes. Under such trivial, almost childish conditions, 

 is it worth while to inquire exactly what franchises we are proposing 

 to enlarge, or whether, on enforcing them, the constant and inevi- 

 table percentage of evasion will be increased or lessened ? Our 

 present statutes of copyright give the very minimum of protection, 

 at the very maximum of e.xpense ; but the amendment they need is 

 not just now, perhaps, in an international direction. For the 

 American author, however, they do afford a certain amount of se- 

 curity, from the very fact of their being upon the statute-books ; 

 while, as to the English author, the purchase by our publishers of 

 advance sheets — which, by the constantly decreasing time-distance 

 between New York and London, is becoming much the cheapest 

 thing our high-class publishing-houses can do — makes almost any 

 piracy on this side labor under the great disadvantage of delay and 

 a remainder-market already supplied. And as to the piracy of 

 current standard works, we can, of course, pass no ex post 

 facto laws. 



Again : British authors have never ceased, I think, to press with 

 whatever interest here they could muster, for international copy- 

 right between their own country and ours. But it is only since a 

 remarkable series of letters by the late Charles Reade, addressed 

 (about twelve years ago) to a New York City daily newspaper, — ■ 

 claiming that American authors suffered more than English ones 

 by non-international copyright relations between the two countries, 

 — that American authors have been found sending in their round- 

 robins and petitions for a treaty or a statute securing such comity. 

 Are our American authors quite sure that Mr. Charles Reade was 

 entirely disinterested, or, as he claimed to be, entirely devoted to the 

 interests of American authors, when he wrote ? That it was not only 

 a new tack, after all, from the English standpoint ? Are American 

 authors quite sure, if English authors could copyright over here, 

 that American publishers would not still prefer the English to the 

 home author ; that he would not, perhaps, write quite as interesting 

 novels and quite as competent text-books ; that from King Log our 

 American author would not find he had been appealing to King 

 Stork } 



As a matter of fact, there are numerically very few publishing- 

 houses indeed at present engaged in reprinting English copyrighted 

 books without English license. And by actual examination of the 

 trade-lists of these, moreover, I find that they are publishing 

 mostly such books as are called ' standard ; ' namely, the works of 

 English anthology, letters, and science, from Shakspeare, Bacon, 

 Locke, Newton, and the like, down to Tennyson, Browning, Darwin, 

 Huxley, Tyndall ; which latter (simply because they do not sell 

 popularly, with the exception, perhaps, of Tennyson) they do not 

 reprint at all. Now, although the descendants of William Shak- 

 speare, could we find them, have a perfect copyright at common 

 law in their ancestor's plays (for there were no statutes of copyright 

 in William's day, and what is now American was English soil), 

 there is no claim in that quarter for our publishers to sin against ; 

 and it is only the living English authors, mostly the novelists, who 

 are moving for international comity. Now, the English novelists 

 are a fraternity to which we owe a good deal in this country. For 

 my own part, I would miss a large fraction of the amenities of 

 existence without them. But the question is, are they a large 

 enough body politically and economically, from an international 

 point of view, to justify treaties or other international legislation 



